[00:00:00] Speaker 02:
Case number 23-5044, Ian Ray sealed case.

[00:00:04] Speaker 02:
Mr. Holtz-Blatt for the imbalance, Mr. Pierce for the epally.

[00:00:13] Speaker 01:
Good morning.

[00:00:13] Speaker 01:
I just wanted to thank you all for briefing this appeal so quickly and for being here this morning.

[00:00:20] Speaker 01:
We know that each side sees the stakes as highly significant, and as ever, we're grateful for Council's assistance to fully understand your positions before we decide the issues before us.

[00:00:35] Speaker 01:
Thank you.

[00:00:39] Speaker 04:
Thank you, Your Honor.

[00:00:40] Speaker 04:
Ari Holzblatt for Appellant.

[00:00:42] Speaker 04:
I've asked reserved 4 minutes if possible.

[00:00:45] Speaker 04:
There are 3 issues on appeal.

[00:00:48] Speaker 04:
I'd like to give the court our bottom line position on each of them before returning to the first issue.

[00:00:54] Speaker 04:
On issue 1, the First Amendment requires the faker of the non-disclosure order.

[00:01:00] Speaker 04:
Strict scrutiny required the government to prove that disclosing this warrant would concretely harm the government's investigation, and the government failed to do so, largely because the public already knows not only who and what are being investigated, but also the fact that the government is collecting the former president's electronic communications.

[00:01:26] Speaker 04:
On issue two,

[00:01:28] Speaker 04:
The First Amendment separately require the district court to resolve Twitter's challenge to the NDO before ordering production under the war.

[00:01:38] Speaker 04:
That's because Twitter's challenge to the NDO could have been resolved with minimal delay and because the NDO blocked protected speech whose value would be irretrievably diminished upon production.

[00:01:53] Speaker 04:
namely speech that would enable the former president to elect to assert a colorable constitutional privilege against production before that privilege was infringed.

[00:02:05] Speaker 04:
Now finally, on issue three, the district court abused its discretion by imposing any contempt sanction at all, much less the unprecedented $350,000 sanction.

[00:02:19] Speaker 04:
when Twitter indiscriminately had substantially complied with the warrant by the court's deadline and indiscriminately worked around the clock to complete production of non-standard data, a mere four hours after the government finally clarified the scope of the document request.

[00:02:39] Speaker 04:
Now returning to issue one, these investigations are unusually public.

[00:02:45] Speaker 04:
The Attorney General of the United States announced the investigations at a press conference.

[00:02:51] Speaker 04:
The government has served dozens of subpoenas and warrants on Mr. Trump's closest confidants without any equivalent non-disclosure order.

[00:03:00] Speaker 02:
Mr. Holtzblatt, it seems to me that your argument on this point is greatly hindered by the fact that you don't know what the district court relied upon in issuing this order.

[00:03:11] Speaker 04:
That's correct, Your Honor.

[00:03:12] Speaker 04:
We don't know the specific facts that were relied upon.

[00:03:15] Speaker 02:
As she said, you don't know what you don't know.

[00:03:17] Speaker 02:
So how can you be making these arguments without understanding what the court relied on?

[00:03:22] Speaker 02:
They're saying she erred without knowing what she relied on.

[00:03:25] Speaker 04:
There are two things we do know, Your Honor.

[00:03:27] Speaker 04:
The first is we know what is public.

[00:03:30] Speaker 02:
And so what we know is that... And if I disagree with you that that's sufficient to challenge that, what else have you got?

[00:03:35] Speaker 04:
What we know is how the district court described the nature of the interests that were at issue in the area surrounding the ex parte submission.

[00:03:43] Speaker 04:
And we know what the first amendment requires.

[00:03:45] Speaker 04:
The first amendment requires searching, not deferential review, here the district court said it was deferral.

[00:03:51] Speaker 04:
That suggests to us that the district court did not have the kind of concrete and specific evidence that was particular to this warrant of additional harm.

[00:04:01] Speaker 02:
So you suspect that she did not, but you don't know that?

[00:04:04] Speaker 04:
Well, that's, Your Honor, that's obviously the nature of these proceedings that we have to point to what we do know.

[00:04:10] Speaker 04:
We know that the NDO, as it was originally obtained, included a rationale that the district court

[00:04:19] Speaker 04:
and the government admitted was erroneous.

[00:04:22] Speaker 04:
We know all of the information that's public.

[00:04:25] Speaker 04:
We know that the government has already sought through dozens of warrants electronic communications with the president.

[00:04:31] Speaker 04:
We know that the government has sought communications from the former vice president.

[00:04:37] Speaker 02:
Just that none of that goes to what is specifically before the district court in this case and knowledge about the specific investigative measures they were taking are not public.

[00:04:49] Speaker 04:
Of course, Your Honor, we don't know specifically what's in the warrant, what it appears.

[00:04:55] Speaker 04:
And again, we acknowledge.

[00:04:57] Speaker 04:
What we know is what appears from the district court's opinion.

[00:05:00] Speaker 02:
And... So if that's not sufficient, you lose, correct?

[00:05:03] Speaker 02:
We are dependent... The first thing... I understand what you're depending on, but if that's not sufficient to sustain what you're trying to do here, you lose.

[00:05:12] Speaker 02:
If knowledge of what's in the public record is insufficient to prove that

[00:05:17] Speaker 02:
what the district court in fact relied upon, which is not public, but sufficient to support what she did and you lose.

[00:05:24] Speaker 04:
Well, it's not our burden to prove that strict scrutiny wasn't satisfied.

[00:05:28] Speaker 04:
It's the government's to prove that strict scrutiny is satisfied.

[00:05:31] Speaker 04:
And so if, if what is in the ex parte record established that there was some additional harm that would be caused by disclosure of this work, if for example, and then you would lose.

[00:05:44] Speaker 04:
Yes, your honor.

[00:05:45] Speaker 04:
Thank you.

[00:05:45] Speaker 02:
Why don't you move on to your next argument?

[00:05:48] Speaker 01:
Well, actually, I was going to ask just sort of getting at the same point.

[00:05:55] Speaker 01:
Assuming, hypothetically, that you have a subscriber and there's probable cause to believe that your subscriber committed a crime to support a warrant and assuming that there's evidence to show, I mean, this is just a hypothetical, that your subscriber had been served with a warrant with respect to a different electronic communications provider and had responded to that with efforts to

[00:06:25] Speaker 01:
manipulate witnesses, let's say, and then the government seeks a nondisclosure order in serving a warrant on your client with respect to your service you provide.

[00:06:37] Speaker 01:
Would that suffice to support the nondisclosure order, or actually, would that suffice to provide the compelling governmental interest that you require in order to have the prior restraint on your speech being legitimate?

[00:06:53] Speaker 04:
It would move in the right direction, Your Honor.

[00:06:55] Speaker 04:
I think there are two additional questions that would need to be answered.

[00:07:00] Speaker 04:
The first is, at the time that the government filed its opposition to Twitter's motion to vacate the nondisclosure order, it had the contents of the Twitter account.

[00:07:12] Speaker 04:
So the factual record of the government put in the district court was not just based on what it had at the time that it applied for the NDO, but to defend maintaining the NDO, it had the contents of the account.

[00:07:26] Speaker 04:
And at that moment, it had to be able to get information out, are there witnesses?

[00:07:31] Speaker 04:
Are there correspondents that disclosure of the warrant would reveal who might be intimidated?

[00:07:37] Speaker 04:
Is there a category of evidence that

[00:07:40] Speaker 04:
might be revealed by the actual contents of this warrant.

[00:07:44] Speaker 04:
I agree, Judge Pan, I don't know what is in the record.

[00:07:48] Speaker 00:
But do you have the opportunity to challenge that at a later date?

[00:07:53] Speaker 04:
What's in the warrant?

[00:07:58] Speaker 04:
We don't.

[00:07:59] Speaker 04:
This is the only opportunity that Twitter has to vindicate its speech right, which is to speak when it matters most, which is in time

[00:08:10] Speaker 04:
its user to speak.

[00:08:13] Speaker 04:
And if what your honor is referring to is whether Mr. Trump has an opportunity to later challenge infringement on his privilege, I want to distinguish between two ways that courts have historically dealt with infringement on a user's or an individual's interest in the context of a war.

[00:08:36] Speaker 04:
where there's a fourth amendment interest, traditionally there's a post hoc suppression opportunity.

[00:08:44] Speaker 04:
When it comes to a privilege, courts, and we've cited cases from the 11th, the 4th, and the 3rd Circuit that have all recognized this,

[00:08:55] Speaker 04:
The courts have historically allowed there to be litigation to stop the government's review of documents that potentially implicate the privilege at this moment in time.

[00:09:08] Speaker 02:
So you don't have standing though to protect any privilege interest that the account holder has.

[00:09:14] Speaker 02:
And you concede that.

[00:09:15] Speaker 04:
We obviously have, we don't have standing to protect the account holder, but we have.

[00:09:20] Speaker 02:
But the timing of this only goes to the account holder's ability to assert a privilege claim.

[00:09:26] Speaker 02:
So with respect to your client's interests, it's just to disclose, but the timing is

[00:09:34] Speaker 02:
in interest that belongs to the account holder, not Twitter.

[00:09:37] Speaker 04:
I don't agree.

[00:09:38] Speaker 04:
And let me explain why.

[00:09:40] Speaker 04:
So the Fourth Circuit case that we cited involved an attorney who, and obviously as you know, the attorney client privilege is a privilege held by the client, not by the attorney.

[00:09:49] Speaker 04:
The Fourth Circuit case that we cited was an attorney that at this moment in time was able to challenge documents that had been seized from the attorney's office in order to protect the attorney

[00:10:03] Speaker 04:
client privilege that was held by the client.

[00:10:06] Speaker 04:
Similarly, we cited a case from the Third Circuit where a doctor was allowed to submit, to challenge at this stage of the proceeding, the interests of disclosure of patient records.

[00:10:17] Speaker 04:
So it is not at all unusual for where documents have been seized from an individual and they implicate the privilege or interest of a third party for the

[00:10:29] Speaker 04:
the individual who is in Twitter's position to be able to intervene at that moment to protect third party's interests.

[00:10:37] Speaker 04:
Now, the second.

[00:10:38] Speaker 01:
Mr. Holzman, are you arguing that the potential existence of an executive privilege in this case, however unsettled that may be, affects the First Amendment analysis

[00:10:57] Speaker 01:
because it's especially important to providers of electronic communication services to be able to notify users if there are any confidentiality breaches that affect

[00:11:17] Speaker 01:
interests that a user would think are very important.

[00:11:21] Speaker 01:
I'm trying to get, because I think it's established that you don't have standing to challenge the NBO and whether it complies with the Act.

[00:11:30] Speaker 01:
I'm trying to appreciate how and where it does fit into your, or that you argue if it's into your First Amendment.

[00:11:38] Speaker 04:
Thank you, Your Honor.

[00:11:39] Speaker 04:
The First Amendment, and I think this is the second point that I wanted to make to Judge Pan.

[00:11:43] Speaker 04:
The First Amendment doesn't just protect the right to speak.

[00:11:47] Speaker 04:
It protects the right to speak when it matters most.

[00:11:51] Speaker 04:
And so the timing of speech matters.

[00:11:55] Speaker 04:
And this was established by the US Supreme Court in the Friedman decision, the economical prior restraint decision, where the court held that where there's a prior restraint, the right to speak is the right to speak promptly.

[00:12:08] Speaker 04:
And promptly is determined by context.

[00:12:11] Speaker 04:
where a reason that the restrained individual is seeking to speak is in order to protect a third party's interest.

[00:12:21] Speaker 01:
And so you're arguing, I mean, Friedman is quite a different context, but I take it that you're really relying on Friedman to support your argument that the review of the nondisclosure order should have traveled with the production

[00:12:41] Speaker 01:
with the review of the warrant?

[00:12:44] Speaker 04:
That is one way that we're using it.

[00:12:45] Speaker 04:
Yes, sir.

[00:12:46] Speaker 01:
And the other way you're using it is?

[00:12:49] Speaker 04:
The second way we're using it is that we, the Freedmen requires there be an adversary judicial proceeding to challenge the actual grounds on which the government relied in obtaining a prior restraint.

[00:13:02] Speaker 04:
And so the government here has, as I believe, taken the position that it can obtain a nondisclosure order on one ground

[00:13:11] Speaker 04:
And then that ground is shaped by the statute that authorizes it.

[00:13:16] Speaker 04:
But then it doesn't have to rely on those statutory grounds or even the grounds that it rely on in obtaining the nondisclosure order when it defends the nondisclosure order in the adversary judicial proceeding.

[00:13:29] Speaker 04:
I don't think that can be square with freedom.

[00:13:31] Speaker 01:
When the district judge passed on the nondisclosure order, she had no, nor did the government have the fruits of the warrant, did they?

[00:13:41] Speaker 04:
Yes, it did.

[00:13:43] Speaker 02:
How so?

[00:13:44] Speaker 02:
The warrant hadn't been... I'm sorry.

[00:13:45] Speaker 02:
There's no warrant return yet.

[00:13:47] Speaker 04:
Yeah, I'm sorry.

[00:13:48] Speaker 04:
When you said passed, I wasn't sure what you meant by passed.

[00:13:50] Speaker 04:
When the district court... Ruled.

[00:13:53] Speaker 04:
When the district court initially obtained the non-disclosure order, they did not.

[00:13:59] Speaker 04:
When the district court...

[00:14:04] Speaker 04:
address our freeman rights for an adversary judicial proceeding, yes, but the government and the court had the benefits of the of the returns because we had produced at that point.

[00:14:15] Speaker 04:
And so the timing of the proceeding was that the non-disclosure order was initially obtained before the warrant was served on Twitter.

[00:14:28] Speaker 04:
Twitter then

[00:14:30] Speaker 04:
as your honors know, challenged the nondisclosure order and there was a proceeding and Twitter asked for the two to be adjudicated together.

[00:14:40] Speaker 04:
The district court denied Twitter's request to adjudicate them together and held Twitter in contempt.

[00:14:45] Speaker 04:
Twitter then produced the contents of the account.

[00:14:50] Speaker 04:
Over our objection, the government filed its brief two weeks later responding to our motion to vacate the nondisclosure order.

[00:15:00] Speaker 04:
In other words, after Twitter had produced on the war.

[00:15:03] Speaker 01:
And your supposition is that the government may have, in defending the nondisclosure order, with some, what I take it, you would claim circularity, they've used the results of that to justify it?

[00:15:19] Speaker 04:
I don't know if they have.

[00:15:20] Speaker 01:
But is that your suggestion?

[00:15:21] Speaker 04:
No, the opposite, Your Honor.

[00:15:22] Speaker 04:
My suggestion is if they fail to use the results of the warrant, then that would undermine

[00:15:29] Speaker 04:
any claim that they've satisfied strict scrutiny.

[00:15:31] Speaker 04:
In other words, at the moment in time when the government defended in the adversary proceeding, whether they could satisfy strict scrutiny, they could inform the court.

[00:15:46] Speaker 01:
I think I'm agreeing with you that at the time that the non-disclosure order is approved, the district judge had a certain amount of information before her, some of it ex parte.

[00:15:58] Speaker 01:
I think you're arguing that whatever was before her then is what's relevant for purposes of whether the government's interest in the integrity of its investigation survives strict scrutiny.

[00:16:15] Speaker 04:
I want to be clear.

[00:16:15] Speaker 04:
I want to make sure I understand which time your honor is asking about.

[00:16:20] Speaker 01:
When she first allowed them to proceed and obtain

[00:16:27] Speaker 01:
the information the warrants sought when she when when she allowed that to go ahead without having separately decided your First Amendment challenge that time the information that was before her that she decided.

[00:16:42] Speaker 01:
So she was allowing them to go forward in confidence.

[00:16:48] Speaker 04:
I think the answer is both.

[00:16:49] Speaker 01:
With a gag rule on you.

[00:16:51] Speaker 01:
She was allowing the gag rule to be in place.

[00:16:54] Speaker 01:
And I think you're saying whatever she had then is the basis on which the compelling interest must rest.

[00:17:04] Speaker 04:
I'm actually saying something slightly different.

[00:17:06] Speaker 01:
OK.

[00:17:07] Speaker 04:
I'm saying both.

[00:17:09] Speaker 04:
The government had to satisfy strict scrutiny at the outset.

[00:17:15] Speaker 04:
and it had to satisfy strict scrutiny to maintain the nondisclosure order later.

[00:17:21] Speaker 04:
When the government first obtained, so the question before the district court should have been, is there enough to get this nondisclosure order from the outset, from the very moment when we obtained it?

[00:17:37] Speaker 04:
Once the adversarial proceeding had unfolded, at that moment in time,

[00:17:43] Speaker 04:
the government actually had the returns from the warrant.

[00:17:48] Speaker 04:
And in my exchange with Judge Pan earlier, we were talking about whether there is an additional harm that is specific to this warrant that would be revealed.

[00:17:57] Speaker 04:
And I think, Judge Pillard, you asked a hypothetical question about, well, what if there is a track record of service on a particular provider, and in response to the knowledge of that service,

[00:18:12] Speaker 04:
I think the question then would be, are there new witnesses in the returns that actually support that theory and is the government

[00:18:28] Speaker 04:
Identify those new witnesses and say to the court in its ex parte submission.

[00:18:33] Speaker 04:
You're the witnesses.

[00:18:34] Speaker 04:
We are.

[00:18:34] Speaker 04:
We are worried about this user intimidating because of this track record and we're going to link that information.

[00:18:43] Speaker 04:
To we're going to identify that as an additional harm completely and ensure that that's different.

[00:18:49] Speaker 04:
than all of the information that's already out there.

[00:18:51] Speaker 01:
So I take you to be arguing today something that I did not see in the briefing, which is that there are two questions.

[00:18:58] Speaker 01:
One is, was the non-disclosure order justified prior restraint on speech when it was first put in place?

[00:19:12] Speaker 01:
And was it a justified prior restraint on speech

[00:19:18] Speaker 01:
as of the time when the government learned what the results of the warrant contain.

[00:19:27] Speaker 01:
And I don't take you to, did you ever ask the district judge once the information had been turned over, like in light of that, can we lift the non-disclosure order?

[00:19:42] Speaker 04:
I don't think we,

[00:19:44] Speaker 01:
Because I think you're right that its validity has to be judged from the time it's the non-disclosure obligation is first placed on your client.

[00:19:54] Speaker 01:
That seems right to me, and that we're looking at that time and we're reviewing with reference to that time.

[00:20:00] Speaker 01:
That's the basic question.

[00:20:01] Speaker 01:
And I take you to be raising a separate question, which is, of course, the speech restraint continues, and it continues to restrict your speech.

[00:20:11] Speaker 01:
And so is there a change circumstance that should require revisiting?

[00:20:20] Speaker 04:
We did not disaggregate the two moments in time in our briefing before the district court

[00:20:29] Speaker 04:
We, what we said was, you know, in an active, the non disclosure should be lifted to the relief that we were seeking in this report.

[00:20:38] Speaker 04:
Was not retrospective relief.

[00:20:40] Speaker 04:
We weren't saying we needed some kind of backward looking relief.

[00:20:44] Speaker 04:
What we were arguing to this report is here's the information we have.

[00:20:49] Speaker 04:
We acknowledge we're not.

[00:20:51] Speaker 04:
fighting the notion that we're at a disadvantage.

[00:20:54] Speaker 04:
We have less information, but we have a lot of information about what is already in the public sphere.

[00:21:00] Speaker 02:
And there is... So I'm just confused about this because the compelling interest that's being asserted is the secrecy and integrity of the investigation.

[00:21:09] Speaker 02:
Did that change somehow after you revealed the account information?

[00:21:16] Speaker 04:
Well, Your Honor, I wanted

[00:21:18] Speaker 04:
Break apart my answer in two, in two parts.

[00:21:21] Speaker 04:
The compelling interest is not secrecy and integrity investigation.

[00:21:23] Speaker 04:
Secrecy is a circular justification for any non-disclosure order by definition.

[00:21:29] Speaker 04:
Secrecy.

[00:21:30] Speaker 02:
If it jeopardizes the investigation that's in the catchall of the statute.

[00:21:35] Speaker 02:
So the district court issues a non-disclosure order.

[00:21:38] Speaker 02:
One of the bases of that is the catchall provision of the statute jeopardizing the investigation and revealing

[00:21:48] Speaker 02:
your investigative steps to the target is a well-known and acknowledged risk to the investigative process.

[00:21:56] Speaker 02:
So if that's the interest, has that changed after you've, I guess, issued the return on the warrant?

[00:22:04] Speaker 02:
I don't think it has.

[00:22:06] Speaker 04:
I agree that serious jeopardy, which I think is actually quite a high standard serious jeopardy,

[00:22:12] Speaker 04:
sort of some in some vague sense integrity of the investigation is is a compelling interest, whether or not the government and satisfy that interest depends on the information that government bears the burden.

[00:22:24] Speaker 04:
It depends on the set of information the government has available to it.

[00:22:29] Speaker 04:
Once the government has the returns, if what the government, in this incredibly unusual case, for so much as public about this investigation, if the particular concern about disclosure of this warrant that the government is identifying is a concern that there's some witness that is going to be intimidated, for example,

[00:22:49] Speaker 04:
that is different than.

[00:22:51] Speaker 02:
So are you just saying that the court needs to re-evaluate after it gets the return information and make sure that it's still compelling?

[00:22:59] Speaker 04:
Well, all I'm saying is the government bears the burden at the time it filed its brief to submit evidence that actually establishes an additional harm compared to all that's already public.

[00:23:08] Speaker 01:
But if it had done that at the beginning, that would suffice.

[00:23:13] Speaker 04:
It would suffice at the beginning.

[00:23:14] Speaker 04:
It would not suffice.

[00:23:15] Speaker 01:
Unless something in the return

[00:23:19] Speaker 01:
alleviated the concern.

[00:23:21] Speaker 04:
To the extent what the government was relying on at the beginning was a predictive judgment.

[00:23:25] Speaker 04:
If that judgment wasn't worn out.

[00:23:28] Speaker 04:
by what they obtained in return, and they didn't address that, then they have to be telling.

[00:23:34] Speaker 01:
I hear you.

[00:23:34] Speaker 01:
That's really helpful.

[00:23:36] Speaker 00:
And when we're looking at the compelling government interests, are we only speaking to the secrecy and integrity of the investigation, or should the district court be allowed to have concerns about obstruction and spoliation of evidence?

[00:23:51] Speaker 04:
I think the three compelling interests that are available to the government here

[00:23:57] Speaker 04:
are destruction of evidence or squalation of evidence, intimidation of witnesses, or serious jeopardy of the investigation, because those are the three statutory harms that the government identified when it obtained the non-disclosure order.

[00:24:12] Speaker 04:
I don't think that secrecy by itself is a compelling government interest that can justify the order and integrity if what integrity means

[00:24:21] Speaker 04:
is destructive evidence and intimidation of witnesses or serious jeopardy investigation, then it isn't adding anything to what is in the statute.

[00:24:30] Speaker 04:
If it means something different than what is in the statute, then no, I don't think that can justify.

[00:24:35] Speaker 00:
And then as to your general comment about the public has knowledge of a broader investigation, balance that for me against what the district judge would have known potentially in the ex parte

[00:24:50] Speaker 00:
investigation.

[00:24:52] Speaker 00:
I mean, with the documents coming to her ex parte.

[00:24:55] Speaker 00:
And this is kind of piggybacking on Judge Pan's earlier discussions with you about what the district court knew at that time, which you would not know because it was ex parte.

[00:25:06] Speaker 00:
So in other words, I'm asking, you might have a broader knowledge about the public investigation.

[00:25:11] Speaker 00:
You know, the public would know generally that, but the district court has something different in front of them.

[00:25:17] Speaker 00:
And how are we to

[00:25:19] Speaker 00:
opined or questioned that there's something perhaps more serious in whatever is in front of her.

[00:25:27] Speaker 04:
So, Your Honor, I think we actually know quite a bit in the public sphere.

[00:25:33] Speaker 04:
We know that the government is specifically seeking electronic communications with the president.

[00:25:38] Speaker 04:
That's public.

[00:25:40] Speaker 04:
And we know that there are dozens of subpoenas and warrants that have been served on the closest confidants

[00:25:47] Speaker 04:
of the president for communications with the president, the vice president, the president's lawyers, daughter, son-in-law.

[00:25:54] Speaker 04:
And so the question that is, that being said, the question needs to be evaluated by the evidence that's in the ex parte record and it's in the public record.

[00:26:04] Speaker 04:
And the searching inquiry that stricture requires is, is there an additional harm when we take as a baseline all those already know, not just

[00:26:14] Speaker 04:
The target and subject the investigation, but also that the government is already seeking electronic communications that they are the government is publicly known be seeking communication with lawyers.

[00:26:24] Speaker 04:
Everyone at Mar-a-Lago the vice president.

[00:26:28] Speaker 04:
the former chief of staff, daughter, daughter, daughter, son-in-law, with all of that information, is there some additional harm, concrete additional harm that is identified here?

[00:26:39] Speaker 01:
Mr. Haswell, sorry to interrupt you.

[00:26:43] Speaker 01:
Just to clarify, had they requested from your client any account information analogous to what is being sought?

[00:26:55] Speaker 01:
here, for example, with the president's daughter, did they come to you and say, we want her as subscriber, or we want the kind of information that they've sought?

[00:27:09] Speaker 04:
If what your honor is asking is whether Twitter has received a warrant for the president's daughter.

[00:27:17] Speaker 01:
With respect to any other user in the circle you described.

[00:27:20] Speaker 04:
I don't know.

[00:27:22] Speaker 01:
Let me just go back.

[00:27:23] Speaker 01:
You have your less restrictive alternatives that you were proposing.

[00:27:29] Speaker 01:
You emphasize what you see as a colorable executive privilege claim, and you say, well, look, there are other ways to protect that other than the nondisclosure order.

[00:27:44] Speaker 01:
how about identifying one of the former president's representatives?

[00:27:49] Speaker 01:
And the government responds, well, that really puts the court in a pretty untenable line-drawing position.

[00:27:57] Speaker 01:
And they say that we would have to examine the group of lawyers and advisors of the former president and determine who is sufficiently trustworthy to not

[00:28:13] Speaker 01:
disclose and jeopardize the investigation.

[00:28:15] Speaker 01:
Is that not a problem in your view?

[00:28:19] Speaker 04:
It's not a problem for two reasons, Your Honor.

[00:28:20] Speaker 04:
The first is that the government itself in its briefing to this court said some of these individuals are not trustworthy for this particular reason we identified.

[00:28:31] Speaker 04:
That concedes that some don't have this objection.

[00:28:36] Speaker 04:
Strict scrutiny places a burden on the government

[00:28:40] Speaker 04:
to show that no less restrictive alternative exists.

[00:28:44] Speaker 04:
Here we have an obvious less restrictive alternative, which is to permit disclosure to a representative who has been designated.

[00:28:51] Speaker 02:
What would be the point of that?

[00:28:52] Speaker 02:
If the point is to allow the assertion of the executive privilege, they would have to tell the account holder.

[00:28:58] Speaker 04:
They would not necessarily have to tell the account holder.

[00:29:00] Speaker 02:
This is one of the... It can be asserted by other people other than the account holder?

[00:29:03] Speaker 04:
It may or may not be able to, but they are certainly in a position to assert more

[00:29:07] Speaker 04:
Uh, writes on the president's behalf or president's behalf than Twitter is.

[00:29:12] Speaker 04:
And in fact, the presidential records act.

[00:29:16] Speaker 04:
the regulations implementing the presidential records act specifically speak of providing notice before disclosure of presidential records either the president or his representative and so this process of which the supreme court relied on in nixon versus gsa as one of the necessary city but isn't the whole point of of it being revealed to a representative that that representative represents the account holder and

[00:29:42] Speaker 02:
They're going to tell the account holder.

[00:29:43] Speaker 02:
They can't assert the rights of the account holder without telling the account holder.

[00:29:48] Speaker 04:
They can do a number of things to represent the interests of the account holder.

[00:29:52] Speaker 04:
That may be to challenge their ability to speak to the account holder in ways that Twitter is not in a position to do.

[00:29:59] Speaker 02:
And if that's not practical though.

[00:30:01] Speaker 02:
then you have no other alternative and there would be no other way to narrowly tailor this.

[00:30:06] Speaker 04:
I guess I'm not sure what it means that it's not practical.

[00:30:09] Speaker 02:
If there is a finding by the district court that I don't know who's trustworthy, who's not, I don't know whether that representative is going to tell the account holder and the whole point of the compelling government interest is to protect the integrity of the investigation because if this gets to the account holder, it could affect the statutory factors

[00:30:32] Speaker 02:
then there's no way to narrowly tailor this.

[00:30:35] Speaker 04:
No, Your Honor, because there is a way to prevent the representatives from speaking to the account holder, which is to issue, to extend the non-disclosure order to the representatives.

[00:30:45] Speaker 04:
And the district court ignored that.

[00:30:46] Speaker 02:
But why is that any better than extending it to you?

[00:30:49] Speaker 02:
Because the account holder still can't assert executive privilege without knowing about this.

[00:30:53] Speaker 04:
Because in this incredibly unusual circumstance, where in Nixon versus DSA, the Supreme Court identified

[00:31:02] Speaker 04:
the ability, cited to these regulations in the Presidential Records Act, and identified the ability to inform representatives of the president, that this is a circumstance where- That's fine, but I'm just saying, factually speaking, the judge here said it's untenable.

[00:31:17] Speaker 02:
I don't know who would be trustworthy, and I don't know that they're not gonna tell the account holder.

[00:31:22] Speaker 02:
And short of that, then there's no other way to narrowly tailor this.

[00:31:24] Speaker 04:
Well, there's two errors in that conclusion, Your Honor.

[00:31:27] Speaker 02:
But am I correct that if that's correct,

[00:31:30] Speaker 02:
then there's no other way to narrowly tailor.

[00:31:31] Speaker 02:
You've got nothing but either reveal part of this to the account holder or reveal part of this or all of this to his representatives.

[00:31:40] Speaker 02:
And if neither of those options is sufficient to safeguard the compelling interest of preserving the investigation and its integrity, then

[00:31:52] Speaker 02:
Strict screening is satisfied.

[00:31:53] Speaker 04:
Well, Your Honor, I think I have to take the district court's opinion as it's written.

[00:31:57] Speaker 04:
The district court opinion as it's written committed two errors on this point.

[00:32:02] Speaker 04:
The first is that the district court put the burden on Twitter, not on the government, to satisfy Nara Taylor, saying, I can't tell who's trustworthy, puts the burden on Twitter.

[00:32:12] Speaker 04:
It doesn't put the burden on the government to establish

[00:32:14] Speaker 04:
that they are not trustworthy.

[00:32:16] Speaker 04:
That's the first problem.

[00:32:17] Speaker 02:
The second problem is that... I think we're looking just for the universe of possibilities, be that from the government or from Twitter, and there doesn't seem to be any way to...

[00:32:28] Speaker 02:
I guess achieve the compelling government interest of maintaining integrity and secrecy.

[00:32:33] Speaker 04:
I don't agree.

[00:32:34] Speaker 04:
And the second reason is that what your honor just asked is, what if these representatives would tell the president?

[00:32:42] Speaker 04:
There is a tool available to prevent that.

[00:32:44] Speaker 04:
And so if the government's concern about why this alternative is not

[00:32:49] Speaker 04:
equally effective at achieving the government's interests, then that tool needs to be used to solve it.

[00:32:55] Speaker 02:
You mean a non-disclosure order to the representative?

[00:32:57] Speaker 04:
That's correct.

[00:32:58] Speaker 02:
Then why can't there be a non-disclosure order to you?

[00:33:00] Speaker 02:
Because the whole point of this is, in your view, is to allow the account holder to assert executive privilege if he wishes to do so.

[00:33:08] Speaker 02:
He can't do that if nobody tells him.

[00:33:11] Speaker 02:
So what good is it to tell his representatives?

[00:33:13] Speaker 04:
So I want to actually

[00:33:17] Speaker 04:
refined this point about speech interest here.

[00:33:23] Speaker 04:
This dispute is occurring in the context of a privilege, which is a constitutional privilege, which the US Supreme Court has upheld intrusion on only when there are certain safeguards present.

[00:33:36] Speaker 04:
So that's an important context.

[00:33:37] Speaker 04:
But when it comes to Twitter's speech interests, the first issue on appeal, not the second issue, when it comes to the first issue on appeal, the less restrictive alternative is

[00:33:47] Speaker 04:
independent of that presidential privilege question.

[00:33:53] Speaker 04:
The only question that has to be asked is, is there a less restrictive alternative that would restrict Twitter speech less, but still be equally effective in achieving the government's interest?

[00:34:03] Speaker 02:
That's the equally effective part.

[00:34:05] Speaker 02:
That's why I think that you're not able to propose something that's equally effective.

[00:34:11] Speaker 04:
If the only harm that the district court or the government has identified

[00:34:15] Speaker 04:
of disclosing the representative is that the representative may then turn around and tell the president, then that harm is fully addressed by extending the nondisclosure order to that representative.

[00:34:26] Speaker 04:
And that allows Twitter to speak more.

[00:34:29] Speaker 04:
It is less restrictive and it is equally effective in addressing the government's harm.

[00:34:35] Speaker 01:
Okay.

[00:34:35] Speaker 01:
And I take you just then to have argued that

[00:34:40] Speaker 01:
It's less restrictive on Twitter to be able to tell a trusted representative, even a representative who would be under non-disclosure order of the court, even if that representative were not legally in any position to assert executive privilege without the former president's knowledge.

[00:35:07] Speaker 01:
and approval.

[00:35:09] Speaker 01:
And you did argue in your reply brief that there is some authorization under basically the President's Presidential Records Act authorization, but you're not arguing that that authorization of certain persons to act in his stead for the protection and disposition of the presidential records of his presidency, you're not arguing that that actually authorizes

[00:35:36] Speaker 01:
those named individuals to assert executive power.

[00:35:41] Speaker 04:
I don't know the answer.

[00:35:43] Speaker 04:
We're not making that argument because I don't know the answer, but I think it's premature actually to resolve it.

[00:35:48] Speaker 04:
I think it's important in this incredibly sensitive context that we move one step at a time.

[00:35:54] Speaker 04:
That we have a system, the Presidential Records Act, which has been reviewed by the Supreme Court for its constitutionality, that

[00:36:03] Speaker 04:
understands that there are incredibly sensitive concerns that are implicated here, and that it specifically identified the ability to empower a representative to represent the president's interests and to have notice of a potential intrusion on presidential records as part of the process.

[00:36:22] Speaker 04:
And there may well be steps that that representative can take short of asserting executive privilege to advocate on behalf of those interests, even when they are subject to the nondisclosure order,

[00:36:33] Speaker 04:
And I think that given that that was available as a less restrictive alternative, given that it could be done without contributing on the government's concerns, and given that the incredibly unusual context that we're operating in, we should have moved the ball forward, even if it only moves the ball forward a little bit.

[00:36:52] Speaker 04:
It moves the ball forward in a way that is respectful of Twitter's very significant First Amendment interests and is respectful of the underlying context that is so sensitive in this case.

[00:37:04] Speaker 01:
Let me ask you about the, unless my colleagues have further questions than that, I wanted to turn before we let you sit down to the sanction question.

[00:37:14] Speaker 01:
I have a question.

[00:37:17] Speaker 02:
It seems to me, Mr. Holtzblatt, that Twitter's entire position in this case seems to overlook the significance that these are orders of a federal judge.

[00:37:30] Speaker 02:
She's made a finding of probable cause.

[00:37:32] Speaker 02:
She's applied statutory factors.

[00:37:34] Speaker 02:
It's the court's job to think about the executive privilege of the target.

[00:37:40] Speaker 02:
of the account holder.

[00:37:42] Speaker 02:
But Twitter has taken upon itself to do things like review the NDO for its facial validity.

[00:37:51] Speaker 02:
That was quite striking to me.

[00:37:52] Speaker 02:
I thought that was our job to review warrants and court orders, not Twitter's job.

[00:37:58] Speaker 02:
Twitter's taken upon itself to try to protect the account holders right to a certain executive privilege.

[00:38:05] Speaker 02:
But what you're overlooking is there is a district court judge, a federal judge who has considered all of these factors and issued orders.

[00:38:14] Speaker 02:
You don't even know what she relied upon, but you seem to be trying to take over the role of the federal judge in this case.

[00:38:20] Speaker 02:
And I'd like you to respond to that because it's really quite extraordinary to me to see what Twitter is trying to do in this case.

[00:38:29] Speaker 04:
Thank you, Your Honor.

[00:38:30] Speaker 04:
I'd like to respond to that.

[00:38:32] Speaker 04:
In Friedman, the Supreme Court held that a prior restraint, which is what we have here,

[00:38:38] Speaker 04:
And I'll be at home unless there is an opportunity for a prompt adversarial.

[00:38:43] Speaker 02:
You didn't say adversarial.

[00:38:44] Speaker 02:
It's a judicial process.

[00:38:45] Speaker 02:
And you've got a judicial process here.

[00:38:47] Speaker 02:
You've got a judge who's made a finding of probable cause and issued an order and has applied statutory factors and issued an order.

[00:38:56] Speaker 02:
You've got your judicial process right here.

[00:38:59] Speaker 02:
And I think it's the Second Circuit that said this is the highest form of process you get.

[00:39:03] Speaker 02:
This is a criminal proceeding.

[00:39:05] Speaker 02:
You've got a judge who looked at this

[00:39:07] Speaker 02:
and applied factors and held that it was fine.

[00:39:10] Speaker 02:
And the judge has an obligation to consider the effect on the account holder and privilege.

[00:39:17] Speaker 02:
And she might have done so without you knowing it.

[00:39:19] Speaker 02:
There might be things in place, hate teams and things of that nature, in place to address these types of issues.

[00:39:27] Speaker 02:
But you don't know.

[00:39:28] Speaker 04:
Respectfully, Your Honor, Friedman held there has to be an adversarial.

[00:39:33] Speaker 02:
It also said in a non-criminal setting, did it not?

[00:39:36] Speaker 04:
There is I am unaware of a single core, even when in not in the national security letter context, second circuit and over some of Casey, the Ninth Circuit and Twitter versus Garland, which are both national security letter cases.

[00:39:47] Speaker 04:
They held that.

[00:39:49] Speaker 04:
even if Friedman doesn't apply, at a minimum, there has to be an adversarial proceeding where the party whose speech is restrained has the opportunity to challenge the specific grounds.

[00:40:00] Speaker 02:
I'd like to know where it specifically says adversarial.

[00:40:04] Speaker 02:
I mean, I read Friedman.

[00:40:05] Speaker 02:
It talks about the non-criminal context.

[00:40:07] Speaker 02:
It addresses a census system to where a film would be.

[00:40:15] Speaker 02:
reviewed by a census body, and it said we need to get to a judicial process promptly.

[00:40:20] Speaker 02:
And there is a judicial process here already.

[00:40:23] Speaker 02:
And I feel that Twitter is just overlooking the fact that a judge has looked at this and has applied both the law

[00:40:35] Speaker 02:
under the Constitution and the statute, and has made holdings.

[00:40:39] Speaker 02:
And you don't even know what she relied upon.

[00:40:41] Speaker 02:
But you come in and try to usurp her role.

[00:40:44] Speaker 04:
Thank you.

[00:40:45] Speaker 04:
I don't have the pin-sided Friedman that used the word adversarial.

[00:40:48] Speaker 04:
I will get it for you.

[00:40:49] Speaker 02:
And it does say non-criminal.

[00:40:51] Speaker 04:
I can't imagine a circumstance more significant than National Security Letters, both in the NRA National Security Letter case from the 9th Circuit, Gooder v. Garland and Doe v. McKay.

[00:41:02] Speaker 02:
Which all held that Friedman wasn't apt.

[00:41:04] Speaker 02:
what they held was that- They said those are censorship and licensing.

[00:41:11] Speaker 02:
context, which is not really applicable here.

[00:41:14] Speaker 04:
At 702 and Twitter versus Garland, what the court held was that there were quote, robust, speaking to Friedman, it said, we don't need to apply these specific procedures in Friedman because there are procedures which are quote, robust and which resemble the Friedman requirements in key respect.

[00:41:32] Speaker 04:
And then when it actually spoke of the specific procedures, and there's whole sections of both the

[00:41:37] Speaker 04:
9th Circuit decision and the 2nd Circuit decision when it's actually addressing what makes the statutory scheme constitutional in those cases.

[00:41:44] Speaker 04:
And one of the things that it identifies

[00:41:47] Speaker 04:
is the ability of the entity whose speech is restrained to challenge the particular grounds on which the restraint was obtained.

[00:41:59] Speaker 02:
You can raise a First Amendment issue, which you have.

[00:42:02] Speaker 02:
You've had that process.

[00:42:03] Speaker 02:
You've been permitted to.

[00:42:04] Speaker 02:
But the statute, in terms of the NDO itself and the warrant, this whole process, the statute limits you to challenging whether the production would be voluminous or burdensome.

[00:42:15] Speaker 02:
and you can really raise your First Amendment issue, which you have.

[00:42:19] Speaker 04:
That's right, Your Honor, we have.

[00:42:21] Speaker 04:
And if the statute somehow precluded us from doing what we've done here.

[00:42:26] Speaker 02:
You can raise your First Amendment issue, but the manner in which you've done so, you've tried to review, you reviewed the NDO for facial validity, or your general counsel did.

[00:42:39] Speaker 02:
And that is not the role of Twitter.

[00:42:41] Speaker 04:
Well, respectfully, Your Honor, that is what

[00:42:44] Speaker 04:
Every one of the courts that I just cited held is necessary when there's a prior restraint.

[00:42:47] Speaker 02:
Really?

[00:42:48] Speaker 02:
Wait, wait, wait.

[00:42:49] Speaker 02:
I'm sorry, Judge Piller.

[00:42:50] Speaker 02:
You're saying that there is support and precedent that allows the recipient of a warrant to assess its facial validity before complying?

[00:43:00] Speaker 04:
I'm sorry.

[00:43:01] Speaker 04:
Assess the warrant's facial validity or the NDO's facial validity?

[00:43:03] Speaker 02:
Either of them.

[00:43:04] Speaker 02:
They're both court orders.

[00:43:05] Speaker 02:
They're both court orders.

[00:43:07] Speaker 02:
Yes, Your Honor.

[00:43:08] Speaker 02:
There's a process for challenging the facial validity of a court order, and that's filing something in court.

[00:43:13] Speaker 02:
But what Twitter did was it said, I think this is facially invalid, so I won't comply until you address my concerns about this other order that was issued.

[00:43:26] Speaker 04:
So I want to pull apart what I understand your honor to be challenging.

[00:43:31] Speaker 04:
When Twitter challenged, the order of the court whose face validity Twitter challenged was the NDO.

[00:43:40] Speaker 04:
The NDO is the restriction on Twitter's speech.

[00:43:44] Speaker 04:
And every one of the courts, I say, I'm unaware of a single court in the country ever to have held.

[00:43:48] Speaker 02:
But I'm focusing on, you conditioned your compliance with the warrant, which you do not dispute the validity of on addressing your concerns about speech.

[00:43:59] Speaker 02:
And how is that OK?

[00:44:01] Speaker 04:
So what Twitter did in this circumstance is actually not very novel.

[00:44:08] Speaker 04:
It's consistent with

[00:44:09] Speaker 04:
the case from the Fourth Circuit, the Third Circuit, the Eleventh Circuit, that Twitter cited, each of which held that where a warrant potentially infringes on the privilege of a party, including where a warrant may infringe on a privilege interest not of the recipient or where the warrant has been served, but on a third party, that it is appropriate for, with respect to the infringement on privilege, to go to court and to challenge

[00:44:37] Speaker 04:
whether or not the search and review of those documents should be.

[00:44:40] Speaker 02:
That's fine.

[00:44:41] Speaker 02:
But you conditioned your compliance with the warrant, which is a completely separate order that you don't challenge.

[00:44:48] Speaker 02:
And you delayed and conditioned your compliance with the warrant until your concerns with the NDO were resolved.

[00:44:57] Speaker 04:
Which is exactly analogous to everything that happened in those cases, with one exception, which I want to address.

[00:45:02] Speaker 04:
It sounds like your honor's concern is that Twitter

[00:45:05] Speaker 04:
off to the government before I went to court.

[00:45:07] Speaker 04:
And what I actually think, I'm sorry.

[00:45:12] Speaker 04:
I think.

[00:45:13] Speaker 04:
Well, go ahead.

[00:45:14] Speaker 02:
Complete what you're saying.

[00:45:15] Speaker 02:
That wasn't what I was trying to say, but I want to understand what you perceived me to be saying.

[00:45:22] Speaker 04:
I think

[00:45:24] Speaker 04:
It has always been my practice, your honor.

[00:45:26] Speaker 04:
I think it's Twitter's practice.

[00:45:27] Speaker 04:
If they have a dispute with the government or with anyone, they try to work out that dispute informally before going to court.

[00:45:35] Speaker 04:
What Twitter did in this circumstance is it reached out to the government or it spoke to the government and it said, these are our concerns and these are the ways in which the warrant and the NDO intersect and how compliance with the warrant

[00:45:50] Speaker 04:
actually infringes on and intrudes on the speech interest that Twitter has here.

[00:45:55] Speaker 04:
We would like to identify that concern for you and see if we can work this out.

[00:46:00] Speaker 04:
There was a dialogue which ensued.

[00:46:02] Speaker 04:
The government said, why don't you get back to me?

[00:46:05] Speaker 04:
We'll talk on January 31st, which was after the deadline on the warrant.

[00:46:10] Speaker 04:
And in that conversation, the government said, you have authority for your position.

[00:46:14] Speaker 04:
Why don't you give it to me tomorrow?

[00:46:16] Speaker 04:
So Twitter came back on February 1st

[00:46:19] Speaker 04:
get after the deadline on the warrant and said, here's our perspective.

[00:46:23] Speaker 04:
This is why we think these issues are linked.

[00:46:26] Speaker 04:
And then on February 2nd, continued the conversation, at which point the government said, we're going to court.

[00:46:30] Speaker 04:
And Twitter said, OK, we're going to go to court, too.

[00:46:32] Speaker 04:
And we'll resolve this.

[00:46:33] Speaker 04:
We've clearly not been able to work out our disagreements.

[00:46:36] Speaker 04:
Twitter had a bona fide, and still has, and is asserting in this court, a bona fide First Amendment interest in not only being able to speak, but in the timing of its speech.

[00:46:48] Speaker 04:
And that timing of the speech was impacted by being able to produce on the warrant.

[00:46:51] Speaker 04:
What Twitter did in this case was it attempted to work things out informally and directly with the government before it litigated.

[00:46:59] Speaker 04:
And to the extent the concern of the court or the court below was that Twitter tried to resolve this dispute informally before it went to court.

[00:47:11] Speaker 04:
I don't think that should be a basis of concern.

[00:47:14] Speaker 02:
I think the concern is the manner in which Twitter did so, saying that we're going to condition our compliance with warrant on the addressing of our concerns with the NDO.

[00:47:23] Speaker 02:
But I understand your position.

[00:47:24] Speaker 02:
I'm sorry, just go ahead.

[00:47:26] Speaker 01:
So I'm just focusing again on this Friedman point and your emphasis that in Friedman there was a reference to requiring not just efficient process to end the prior restraint as quickly as possible, but that it be adversarial.

[00:47:43] Speaker 01:
I take the role of that in support of your First Amendment argument that the court found it important to avoid making the censor's determinations final in practice.

[00:47:59] Speaker 01:
And that your concern applying that here is that it really goes to sort of the level of generality and what the court is requiring of the government when it allows a nondisclosure order to govern.

[00:48:13] Speaker 01:
And so in particular, if the government can come in and say, we think this investigation would be jeopardized if there isn't a nondisclosure order, that's a compelling interest, so please, judge, put a nondisclosure order in place, that raises the concern when stated at that level of generality.

[00:48:33] Speaker 01:
If the courts are rubber stamping that kind of presentation,

[00:48:38] Speaker 01:
that raises, it's a distinct context, but that raises in your mind a concern analogous to the concern particularly by the Court of Freedom.

[00:48:46] Speaker 04:
Yes, Your Honor.

[00:48:47] Speaker 04:
And in fact, there was in this non-disclosure order itself a rationale which when tested in the adversarial proceeding, the government and the court said that was a mistake.

[00:49:01] Speaker 04:
That isn't justifiable.

[00:49:02] Speaker 01:
I hear you.

[00:49:02] Speaker 01:
That was the risk of flight.

[00:49:03] Speaker 04:
That's correct, Your Honor.

[00:49:04] Speaker 01:
So you have cause for concern and you're here

[00:49:08] Speaker 01:
pushing us to not be satisfied with this kind of generalized, one-size-fits-all rubber stamp authority for the government to make its own determinations that are then

[00:49:22] Speaker 01:
deemed sort of final in practice.

[00:49:24] Speaker 01:
And, you know, one of the things that the court says in Freeman is the censors may be overeager.

[00:49:29] Speaker 01:
And it notes that, in fact, when the Maryland courts started to look at these determinations, they've mostly reversed them.

[00:49:35] Speaker 01:
So that's the nature of your argument here now.

[00:49:38] Speaker 04:
That's correct.

[00:49:39] Speaker 04:
And there is, as we all know, the benefit of an adversarial presentation is the benefit of an adversarial presentation.

[00:49:46] Speaker 04:
We, for example,

[00:49:47] Speaker 04:
I don't believe there's any indication that, for example, the government or the district court considered ex parte before, at the very beginning, before we were involved, the less restrictive alternatives that we have identified.

[00:50:02] Speaker 04:
It is the government's burden to negate those less restrictive alternatives, but having the benefit of Twitter's involvement allows the court the benefit

[00:50:12] Speaker 04:
of a wider perspective.

[00:50:14] Speaker 04:
Of course.

[00:50:15] Speaker 01:
Now here we have something we didn't have in Freeman, which is, you know, there are cases in which the government has a need for confidentiality and it's going to come to us ex parte.

[00:50:27] Speaker 01:
And I think you're right that the adversary system is, is, has strengths that when it is adapted and less adversary are missing, we don't lightly

[00:50:40] Speaker 01:
hear things in a non-adversary process.

[00:50:42] Speaker 01:
But assuming that there is some valid subset of interests that the government might have that justify ex parte, there is something here that is substituting for the full civil adversary process in Freeman, right?

[00:50:56] Speaker 01:
It is the court reviewing and testing the nature of what the government is putting forward.

[00:51:05] Speaker 01:
I take it it's not your position that that is categorically inadequate under the First Amendment.

[00:51:16] Speaker 04:
We are not taking the position that the 27.05b is unconstitutional, which 27.05b authorizes

[00:51:33] Speaker 04:
issuance of a nondisclosure order before there's been an adversarial proceeding.

[00:51:37] Speaker 04:
And we're not saying that the lack of a advance adversarial proceeding renders the statute unconscionable.

[00:51:44] Speaker 04:
If you would have a situation where the party who is specious and restricted couldn't then go to court to challenge the maintenance of that nondisclosure order, that would be unconscionable.

[00:51:57] Speaker 04:
And it would not be a substitute.

[00:52:02] Speaker 04:
But the fact that there's been an ex parte proceeding before a judicial officer, but the party whose speech is restricted has never had an opportunity to challenge the validity of that, yes, that would be unconstitutional.

[00:52:14] Speaker 04:
And I also want to underline, this case that we have before us is an incredibly unusual and peculiar case.

[00:52:26] Speaker 04:
in many respects.

[00:52:28] Speaker 04:
It is incredibly unusual and peculiar because it is very rare for there to be investigations that are as public as this investigation.

[00:52:38] Speaker 02:
The Department of Justice's own- Well, the district court cited the Mueller report and the Mueller investigation in a very similar parallel type of situation.

[00:52:46] Speaker 02:
Similar orders were issued in that case.

[00:52:50] Speaker 02:
Information in the public record, and there was still a need to preserve the integrity of the investigation.

[00:52:56] Speaker 04:
And in each of those non-disclosure orders, as the Department of Justice's own 2705b manual says, each of those non-disclosure orders has to be evaluated on its own terms.

[00:53:06] Speaker 04:
And it acknowledges that as a... Correct.

[00:53:08] Speaker 02:
I'm just saying you're saying so unusual.

[00:53:10] Speaker 02:
The district court disagreed and said, what about the whole Mueller investigation?

[00:53:14] Speaker 04:
Well, the district court disagreed.

[00:53:16] Speaker 04:
without, as far as we can tell, actually banning our less restrictive alternative.

[00:53:21] Speaker 04:
The district court ignored.

[00:53:22] Speaker 02:
You've moved on to a different issue.

[00:53:25] Speaker 02:
You're just saying this is so unusual.

[00:53:26] Speaker 02:
And I'm just telling you, why is it so unusual when we just had another special counsel investigation involving the same target?

[00:53:33] Speaker 04:
Well, it's unusual because Twitter receives thousands of non-disclosure orders and warrants every year in one of the mail investigations.

[00:53:39] Speaker 04:
And what is rare is it is incredibly common

[00:53:44] Speaker 04:
for there to be an investigation that is not announced by the Attorney General of the United States.

[00:53:48] Speaker 04:
There are thousands, tens of thousands of such investigations every year.

[00:53:52] Speaker 04:
It's incredibly common for there to be investigations where the closest confidants of the targeted investigation haven't been served at this stage of the investigation with subpoenas and warrants that are not accompanied by a nondisclosure order, and yet a nondisclosure order is being sought.

[00:54:08] Speaker 02:
How do you know that that's true, though?

[00:54:10] Speaker 02:
There might be more that you don't know about that were served with nondisclosure.

[00:54:13] Speaker 04:
That may well be what I do know is that the daughter of the president, son-in-law, former vice president, his lawyers, all of his staff at Mar-a-Lago, his closest confidants have been served with subpoenas and warrants without accompanying nondisclosure orders.

[00:54:27] Speaker 04:
And that is what makes this case unusual.

[00:54:30] Speaker 04:
And as the 2705B policy manual of the Department of Justice says, as an investigation, quote, becomes public, the ability to justify a nondisclosure order waives.

[00:54:41] Speaker 04:
And so what we have here is a

[00:54:43] Speaker 04:
is a case, as the department itself recognizes, that it has the kinds of features that make it already establish the need for a non-disclosure order.

[00:54:52] Speaker 04:
And that's why all I'm saying, Your Honor, is that the fact that this may well be a case, that if Twitter is correct, as we assert, the non-disclosure order is not justified either by itself or in light of the less restrictive alternatives that are available, doesn't suggest that there aren't

[00:55:09] Speaker 04:
thousands of run-of-the-mill cases that weren't announced by the attorney general at a press conference, where it's totally appropriate to have it on exposure.

[00:55:16] Speaker 01:
Can we move on to the contempt?

[00:55:18] Speaker 01:
Yeah.

[00:55:19] Speaker 01:
I'd like to ask about the sanction.

[00:55:24] Speaker 01:
The government argues in part that we should affirm the sanction imposed, because even though there was this provision for a geometrically rising sanction, the compliance was

[00:55:39] Speaker 01:
was not weeks or months and billions of dollars later, but $350,000 later, and that that itself was not an impermissibly severe or onerous amount.

[00:55:51] Speaker 01:
Now, I'm bracketing for the moment your argument that no sanction is warranted.

[00:55:57] Speaker 01:
And I hear you that you're making an argument that there were good faith and substantial efforts to comply.

[00:56:04] Speaker 01:
But assuming that there is a basis for some

[00:56:08] Speaker 01:
of contempt sanction and focusing on the reasonableness or not of the amount.

[00:56:14] Speaker 01:
First, are you separately challenging the reasonableness or not of the amount?

[00:56:18] Speaker 01:
We are.

[00:56:19] Speaker 01:
Do you think it's before us, the formula, given that the amount was not strength-spheric because the formula wasn't allowed to run for a longer period?

[00:56:35] Speaker 04:
Yes, I think both the formula and the amount

[00:56:39] Speaker 02:
Did you challenge the formula before the district court?

[00:56:41] Speaker 02:
Because I don't see that in the record.

[00:56:43] Speaker 04:
Well, we challenged the application of the sanction before the district court.

[00:56:49] Speaker 04:
But not the formula.

[00:56:50] Speaker 04:
Well, I don't believe the government has argued that we've waived the challenges we've made in our pilot briefing.

[00:56:55] Speaker 04:
So even if it were the case, I don't think it is that there's been a waiver.

[00:56:58] Speaker 04:
There's been a waiver of the waiver by the government.

[00:57:00] Speaker 04:
I think before the court right now is our challenge to the reasonableness both of the total amount

[00:57:05] Speaker 04:
for me to use and to the defense of good faith, substantial plans.

[00:57:09] Speaker 04:
And on all of those grounds, we think the district court plainly had used discretion.

[00:57:14] Speaker 04:
I'm unaware.

[00:57:15] Speaker 02:
But to nail this down though, there is no record citation to where you objected to the formula in the district court.

[00:57:21] Speaker 02:
Because I wasn't able to find that.

[00:57:23] Speaker 04:
Your honor, you're right, your honor.

[00:57:25] Speaker 04:
In the district court, the court turned to the government and said, what do you propose?

[00:57:30] Speaker 04:
And the government said, well, we haven't thought about it.

[00:57:33] Speaker 04:
The government counsel conferred at the table and said, we'd like a $50,000 a day sanction that doubles on a daily basis.

[00:57:40] Speaker 04:
The court did not turn to Twitter and said, well, what do you think about that?

[00:57:42] Speaker 04:
The court only said, that's what I'm imposing.

[00:57:45] Speaker 04:
So that's the way that it proceeded.

[00:57:46] Speaker 04:
We believe we've.

[00:57:48] Speaker 02:
But you're not shy, Mr. Holtzplatt.

[00:57:50] Speaker 02:
You could have interjected and said, that seems excessive.

[00:57:53] Speaker 02:
Or you could have filed something.

[00:57:54] Speaker 02:
And you did file something later, but you never objected to the formula.

[00:58:00] Speaker 04:
I believe your honor has accurately described the record.

[00:58:03] Speaker 04:
It is also the case that we have challenged every aspect of the sanction in this court and the government has not been shy about claiming that we've waived certain arguments.

[00:58:12] Speaker 04:
They have not argued that we have waived those arguments.

[00:58:14] Speaker 04:
So it would be

[00:58:15] Speaker 04:
I think extraordinary in the face of this unprecedented sanction, the whole waiver against Twitter where the government itself has not claimed the waiver.

[00:58:22] Speaker 02:
But you didn't give the district court an opportunity to consider these arguments.

[00:58:27] Speaker 02:
I know you're saying they waived the waiver, but I think our point is you should give the district court an opportunity to address your claim that this is outrageous and exponential and unprecedented.

[00:58:38] Speaker 04:
What we did argue to the district court in our

[00:58:42] Speaker 04:
when the district was considering imposition of the sanction, we argued that the sanction was unreasonably severe.

[00:58:48] Speaker 04:
That's the submission that we made in the final submission to the district court.

[00:58:52] Speaker 00:
But are you asking us to just declare that the fine or the sanction is unreasonable or to remand to the district court under some standard of some sort?

[00:59:05] Speaker 04:
I think we are challenging, we've made a number of challenges to the sanction.

[00:59:10] Speaker 04:
One of the challenges we've made is that the sanction is, but the structure and total amount of the sanction were unreasonably severe and therefore had become punitive rather than coercive.

[00:59:20] Speaker 04:
And that, and I think that is a ground that if the court agrees with us, would and should, would and should

[00:59:27] Speaker 04:
result in reversal without remand.

[00:59:29] Speaker 04:
We've also argued that the district court committed a series of legal errors in the course of considering our defense of good faith substantial compliance.

[00:59:40] Speaker 04:
And we believe that there's no need to remand because the facts that would bear properly considered, the facts that would bear that question

[00:59:47] Speaker 04:
are all undisputed and before this court, but if the court disagrees, that would be a ground that could be remanded to this report to apply the test in the correct way.

[00:59:56] Speaker 04:
So I think there's, there's a truth, there may, there are a series of options that are available, I think, to the.

[01:00:02] Speaker 01:
So, so Mr. Holzberg, here's a question the district judge had heard from you.

[01:00:08] Speaker 01:
at on the day that she imposed the time schedule that your client was prepared to fully comply with the warrant by that same evening, correct?

[01:00:25] Speaker 04:
Well, not quite, Your Honor.

[01:00:27] Speaker 04:
The citation is at JA 210 is the exchange with the court.

[01:00:34] Speaker 04:
And the court asked, can you produce the warrant returns by 5 PM?

[01:00:38] Speaker 04:
And we said, I believe we're prepared to do that.

[01:00:40] Speaker 04:
Yes, Your Honor.

[01:00:41] Speaker 04:
And the reason I said not quite is because the word fully is not there in the record.

[01:00:48] Speaker 04:
And I think the exchange

[01:00:50] Speaker 04:
that Council had with the court, I believe there's a context that needs to be considered, which is that we had had here in the midst of an ongoing dialogue with the government.

[01:01:01] Speaker 04:
at the time, and that dialogue was reflected in the court's filings, where he had repeatedly said that we had preserved data from our standard toolings, that's a JA8, 14, and 51, and were willing to produce data to be held by the court without review, that's a JA42 and 46, but that there were, quote, technical issues we will need to work through in responding once this issue is resolved, that's a JA55.

[01:01:27] Speaker 02:
But doesn't that all imply, I think we might be saying the same thing.

[01:01:32] Speaker 02:
Doesn't your response though imply that you're going to get all that taken care of by five?

[01:01:37] Speaker 02:
Because the question is, can you produce the war returns by five p.m.?

[01:01:40] Speaker 02:
?

[01:01:41] Speaker 02:
And the response is, I believe we are prepared to do that.

[01:01:44] Speaker 02:
Yes, Your Honor.

[01:01:45] Speaker 02:
That does not imply full compliance.

[01:01:48] Speaker 02:
If it was not going to be full, wouldn't it be incumbent upon Twitter to say so?

[01:01:54] Speaker 04:
I think that the exchange with the court certainly could have been clearer, and I acknowledge that.

[01:01:58] Speaker 04:
But I do think the exchange was happening in the context that I just described.

[01:02:03] Speaker 04:
And in particular, what we had said to the government and in our submissions, which was in the declaration that was submitted to the court,

[01:02:10] Speaker 04:
is that technical issues will need to be worked through in responding once this issue is resolved.

[01:02:21] Speaker 04:
Specifically saying to the government, we have stuff we need to sort out with you and we need to work it out.

[01:02:25] Speaker 01:
But that's the government, not the court.

[01:02:27] Speaker 01:
Here you have a court saying,

[01:02:30] Speaker 01:
Can Twitter produce the warrant returns by 5 p.m.

[01:02:33] Speaker 01:
today?

[01:02:33] Speaker 01:
There's no caveat on, but of course you're still working with the government on some dispute.

[01:02:39] Speaker 01:
Can Twitter produce the warrant returns by 5 p.m.

[01:02:41] Speaker 01:
today?

[01:02:42] Speaker 01:
I'm reading from Jade and I believe we are prepared to do that.

[01:02:46] Speaker 01:
Yes, your honor.

[01:02:48] Speaker 01:
The next page, she refers to a clear and unambiguous court order in place.

[01:02:54] Speaker 01:
and requiring Twitter to comply with production of the specified records by January 27, 2023.

[01:03:03] Speaker 01:
And two pages later, the court says, Twitter has no defense for its failure to comply with the search warrant.

[01:03:09] Speaker 01:
And you are not anywhere in this or your colleagues saying,

[01:03:14] Speaker 01:
Well, we're going to give what we can.

[01:03:17] Speaker 01:
We've got some technical things.

[01:03:18] Speaker 01:
We've got some things we're working out with the government.

[01:03:21] Speaker 01:
So what I'm thinking about is, what is the court on notice of when she imposes the sanction?

[01:03:29] Speaker 01:
And if I'm a court who thinks this is all going to be over today,

[01:03:34] Speaker 01:
I'm going to be less careful about whether 21 days out, the formula I'm imposing is going to lead to a $100 billion contempt sanction.

[01:03:43] Speaker 01:
And it's harder for me to see the coercive impact being particularly relevant in this case, where there's been an exchange and the court really thinks that you have heard her, that you're going to give it all up.

[01:04:04] Speaker 04:
I understand what your honor is saying.

[01:04:07] Speaker 04:
And this was a fascinating proceeding.

[01:04:11] Speaker 04:
And I acknowledge that we could have been clearer in the district court.

[01:04:14] Speaker 04:
And I've tried to explain to the court the statements that Twitter is making happening in that context.

[01:04:18] Speaker 04:
However, I want to make one important point.

[01:04:21] Speaker 04:
In Washington Metropolitan, this court held that there is an obligation at the end, before actually

[01:04:31] Speaker 04:
imposing the sanction that had been announced at the beginning to determine not only, quote, whether there is indeed intent, but also whether, if so, it be of such magnitude as to warrant retention in part or to any extent

[01:04:50] Speaker 04:
of the coercive fine originally provided for in contemplation of out and out refusal to obey.

[01:04:56] Speaker 04:
And so this court in Washington Metropolitan, that's at 531 US at 621, said the court, and the reason for that is because the purpose of the contempt sanction is purely coercive.

[01:05:10] Speaker 04:
It is not punitive.

[01:05:13] Speaker 04:
It is not, and the court said this in Washington Metropolitan as well, it is not to vindicate the authority of the court.

[01:05:18] Speaker 04:
The purpose of the conviction, sole purpose, is to ensure that the party moves as quickly as possible to actually bring itself into compliance with the orders of the court.

[01:05:30] Speaker 04:
And so the court, and it is a harsh tool, and it is a tool, as the court said in Washington, Metropolitan, that is very risky of abuse.

[01:05:39] Speaker 04:
And in order to protect against all of those concerns, this court said the court must evaluate at the beginning and it must evaluate at the end

[01:05:48] Speaker 04:
whether even if it announced a schedule has to evaluate the end, whether it should go through with that schedule and what the court.

[01:05:54] Speaker 02:
But the schedule in this case just ended up with $350,000, which for your client is not an undue amount.

[01:06:02] Speaker 02:
Given just what I understand about the size of your client.

[01:06:05] Speaker 04:
So I don't, I don't agree that it's not an undue amount.

[01:06:07] Speaker 04:
I I'm not aware of, of, of sanctions, anything like this.

[01:06:11] Speaker 04:
And we, we argued in our papers, this is unprecedented.

[01:06:14] Speaker 04:
Government didn't come back and say, here's the precedent that shows how reasonable this is.

[01:06:18] Speaker 04:
This is an extraordinary sanction.

[01:06:19] Speaker 02:
I'm sorry, but it has to be coercive and your client is probably a lot bigger and better capitalized.

[01:06:26] Speaker 02:
than a lot of the other people who have been subject to contempt sanctions.

[01:06:30] Speaker 02:
So it seems like if you're trying to coerce a deep-pocketed corporation like Twitter, it has to be a little painful or else you're not going to comply.

[01:06:39] Speaker 04:
I don't agree.

[01:06:40] Speaker 02:
I don't think that $50,000 is not that much to you, but $350,000 is a little bit more significant.

[01:06:45] Speaker 04:
Well, I don't think that Twitter is more well-resourced than the United States government, the largest economy in the world, and the only example that... Yeah, but it's not subject to an anti-deficiency act or all kinds of problems.

[01:06:56] Speaker 04:
The only example that the government has pointed to of a doubling sanction was the Pigford sanction, which I'm sure the court's very familiar with, which was $1,000 a day that didn't double for a month.

[01:07:05] Speaker 04:
We've pointed to China, which is the second largest economy in the world.

[01:07:09] Speaker 04:
We've pointed to multi-billion dollar banks.

[01:07:11] Speaker 02:
Yeah, you didn't point these out to Judge Howard.

[01:07:13] Speaker 04:
We did argue to the district court at the time that Washington Metropolitan says we should argue, which is at the end, that it was unreasonably severe, and Judge Howell mechanically calculated the sanction without evaluating the complexities of compliance, which is what... But you didn't raise those... Do you think she mechanically applied it, but you didn't raise these arguments you're raising to us, to her, so that she could evaluate that?

[01:07:34] Speaker 04:
We're respectfully honored we did.

[01:07:36] Speaker 04:
At the end of, before the court imposed the sanction, we said, here's what we have done to substantially buy a good case.

[01:07:44] Speaker 02:
I know, I'm just referring to the formula.

[01:07:46] Speaker 02:
You did not, you're telling us now that this formula is unreasonable, but you didn't say that to her.

[01:07:52] Speaker 02:
And now you're pointing to Pickford and all these things that she didn't have the benefit of knowing about because you didn't raise it.

[01:07:57] Speaker 04:
What we said to the court was that the sanction is unreasonably severe.

[01:08:00] Speaker 04:
And the court at that time believed its obligation was simply to add up numbers, not actually assess whether or not, as this court said in Washington Metropolitan, whether at the end it was still appropriate to go through with the sanction that it announced at the beginning.

[01:08:16] Speaker 04:
And I believe actually the record is quite clear that the court viewed its job as simply adding up the numbers, not as evaluating

[01:08:24] Speaker 04:
after the fact, whether it should still go through with the sanctioned announce at the beginning.

[01:08:28] Speaker 01:
All right.

[01:08:29] Speaker 01:
Any questions from my colleagues before we let Mr. Holzblatt?

[01:08:32] Speaker 00:
No, thank you.

[01:08:34] Speaker 01:
Thank you, Mr. Holzblatt.

[01:08:34] Speaker 01:
All right, thank you.

[01:08:35] Speaker 01:
And you have, you know, we've given you, we've taken you on a much longer course than we had scheduled, but we will still give you a brief amount of the bottle.

[01:08:45] Speaker 04:
I appreciate your honor, and I appreciate all of the court's time and attention to this in a difficult case.

[01:08:53] Speaker 01:
Mr. Pierce, good morning.

[01:08:54] Speaker 03:
Good morning, Mr. Court, James Pierce, United States.

[01:09:00] Speaker 03:
As the District Court correctly concluded, the 180-day non-disclosure order furthered compelling interests, including safeguarding the integrity of an ongoing criminal investigation, and it was narrowly tailored.

[01:09:13] Speaker 03:
The District Court reasonably adjudicated Twitter's non-compliance with the warrant for addressing its separate challenge to the NDO,

[01:09:21] Speaker 03:
And Twitter's procedural claim is both moot and meritless.

[01:09:25] Speaker 03:
Finally, the district court did not abuse its discretion when it held Twitter in contempt and imposed the $350,000 monetary sanction.

[01:09:35] Speaker 03:
Now.

[01:09:35] Speaker 03:
A lot of ground has been covered, and I think perhaps my time out here is most useful to try and respond to the court's questions.

[01:09:42] Speaker 03:
So I'm happy to go through plenty that I saw in notes, but I'm also happy simply just to respond.

[01:09:49] Speaker 03:
Where I had intended to start hearing my friend's argument on the other side is, I think, in exchange with you, Judge Pillard, which is, we agree that the analysis is, what was the district court look in terms of the adequacy of the NDO

[01:10:03] Speaker 03:
at the time that the court was making that consideration.

[01:10:06] Speaker 03:
In other words, the government can't go back and say, here's what we found, and that's now going to justify the factors under 2705B.

[01:10:14] Speaker 01:
But he's also making a separate argument, which is that you have an ongoing duty as you accumulate more information, and specifically the returns from the warrant, to reassess whether at that time the NDO could have been lifted.

[01:10:30] Speaker 01:
And I wonder whether you think

[01:10:31] Speaker 01:
that's accurate as a legal matter and whether you are confident in the continuing support for an NDO given the returns that you now have.

[01:10:43] Speaker 03:
So I don't think that's accurate.

[01:10:45] Speaker 03:
A court enters the NDO for the time that it believes is appropriate.

[01:10:50] Speaker 03:
And there's nothing to say that there's some sort of intervening check-in that happens up until that time.

[01:10:55] Speaker 03:
Certainly, when an NDO lapses, the government, if it chooses to seek renewal, needs to go back again and satisfy the district court anew that the factors or perhaps additional factors could come into play.

[01:11:09] Speaker 03:
As a practical matter, I can say

[01:11:11] Speaker 03:
Although Twitter had made its production, I believe, a week or so before the government filed its response to Twitter's motion to vacate.

[01:11:21] Speaker 03:
there are filter and review processes that meant that the government did actually have in its hands this information to go through and analyze and to sort of, even if this were an obligation, which again, I don't think it is, to supplement the record with, based on what we found.

[01:11:38] Speaker 03:
And the point again is that it's an ex ante determination.

[01:11:41] Speaker 01:
And the government did not supplement the record with what it found.

[01:11:47] Speaker 03:
Well, so I think,

[01:11:49] Speaker 03:
We did in defending, so I think it's important to parse two different things, right?

[01:11:53] Speaker 03:
There's the 2705B factors that is the process of securing a nondisclosure.

[01:12:00] Speaker 03:
That is, you know, the universe of five statutory factors, the government relied on factors three to five, notwithstanding essentially the Scrivener's error of including the risk of flight.

[01:12:10] Speaker 03:
When then Twitter comes in and makes its First Amendment challenge, that's a challenge that is broader than, in our view, than just the world of 2705b.

[01:12:21] Speaker 03:
Certainly the factors identified in 2705b, as the Third Circuit said in the recent matter of, in rematters, you know, all these cases have sort of indiscriminate names that make them hard to distinguish, but in the 2020 decisions, it's more or less the 2705b factors capture what will be a compelling government interest.

[01:12:37] Speaker 03:
And frankly, it's very hard

[01:12:39] Speaker 03:
to imagine the case in which

[01:12:42] Speaker 03:
the district court does a good faith analysis and comes back and finds 2705B satisfied.

[01:12:48] Speaker 03:
In other words, it's not simply a rubber stamp, as I heard the phrase before, and there then not to be a compelling government interest.

[01:12:55] Speaker 03:
That said, however, there's certainly nothing to say that to determine the compelling government interest needs to be coterminous with the five factors in 2705B.

[01:13:04] Speaker 03:
I mean, I think here, the factors on which we rely, and we talk about this in the brief, we talk about this in terms of

[01:13:10] Speaker 03:
the ex parte record as well, I think are largely encompassed in the broader term safeguarding the integrity of the government investigation that includes things like evidence foliation, witness intimidation, and then the catch-all of jeopardizing the investigation as a whole.

[01:13:27] Speaker 03:
Now, again, I'm happy to entertain questions on the compelling government interests, but

[01:13:35] Speaker 03:
I think I've given a broad overview and I can deal with some of those to the extent that it has more granular questions perhaps in some sort of ex parte.

[01:13:43] Speaker 01:
Let me just ask you in terms of the compelling interest.

[01:13:49] Speaker 01:
Twitter has consistently argued that much about this investigation is already public and really questions from its admittedly

[01:14:01] Speaker 01:
non-obnition perspective, how the marginal disclosure of this warrant could generate or increase the harms that the government has identified as the compelling interest for the non-disclosure order.

[01:14:20] Speaker 01:
Can you address that generally?

[01:14:22] Speaker 01:
And I would like in a brief ex parte session to hear more granularity, but just in general terms,

[01:14:32] Speaker 03:
Speaking more generally, I would say the obstructive nature of the former president's actions, as evidenced the district court in its opinion below, historically speaking, identified with respect to the Mueller investigation a number of actions that the former president had taken to try to obstruct aspects of that investigation.

[01:14:56] Speaker 03:
um I think there is there is similar evidence here uh and in that you're referring to paying attorney's fees for witnesses offering pardons uh sorry your honor that would be part of the ex parte session here uh I'm talking what I was historically though wasn't that something that was

[01:15:14] Speaker 03:
So I don't know if that was part of the Mueller investigation, but it was various efforts to try to terminate the then special counsel Mueller to try to intervene with then FBI Director Comey, asking the White House counsel to try to take some of these steps, these kinds of things to try to undermine the investigation.

[01:15:36] Speaker 03:
So the point here is just the broader point of

[01:15:39] Speaker 03:
this particular individual, the former president's, demonstrated history of obstructive conduct.

[01:15:46] Speaker 03:
You know, again, in terms of more specifically how that reflects into this investigation, you know, I'm happy to talk about separately.

[01:15:53] Speaker 03:
I do think, though, that the fact that some of this information is out in the public, yes, it's true, that makes this, you know, less usual than in a criminal investigation where there is

[01:16:04] Speaker 03:
sort of no or very little information.

[01:16:08] Speaker 03:
But that still doesn't change, as I think I heard Judge Pan saying, the nature that the government's telling interest remains compelling, particularly, again, for the obstructive reasons.

[01:16:18] Speaker 01:
In terms of less restrictive alternatives, what about Twitter's proposal that a associate or representative of the president could be informed and even indeed put within

[01:16:33] Speaker 01:
the confines of the non-disclosure obligation.

[01:16:35] Speaker 01:
And I heard today Mr. Holtz-Polat say even if that person weren't empowered to assert executive privilege without consulting with the president, it would be materially less obstructive or restrictive of Twitter's speech to allow that.

[01:17:01] Speaker 01:
Does the government have a position on that?

[01:17:03] Speaker 03:
So, as your question suggested, this is sort of the, I think the first time, it's been a bit of a moving picture as to precisely what the least restrictive alternative that Twitter proposes is.

[01:17:15] Speaker 03:
I think, however, there are some questions with it.

[01:17:17] Speaker 03:
So I disagree with my friend on the other side that we somehow conceded that the list of representatives are necessarily trustworthy or that there's some that are trustworthy or some that are not.

[01:17:29] Speaker 03:
As one of the questions, I think it was your question, Judge Pollard, indicated

[01:17:33] Speaker 03:
They're going through a kind of person by person analysis to determine who's trustworthy, who's not.

[01:17:42] Speaker 03:
As the Third Circuit again said in the subpoena case from 2020, it's a line drawing exercise that courts shouldn't have to spend time going down and undertaking their time to do.

[01:17:54] Speaker 03:
And I expect the response will be, well, this is the First Amendment, and it's got to be the least tailored alternative.

[01:18:00] Speaker 03:
But already we're talking about something that is not a film or a speech to sort of emphasize the difference in context.

[01:18:07] Speaker 03:
This is a very narrow slice of speech.

[01:18:09] Speaker 03:
This is Twitter conveying information that it has received from the government.

[01:18:14] Speaker 03:
And I'm not discounting that they have a First Amendment interest in doing that.

[01:18:17] Speaker 03:
My point is simply that this is a narrower

[01:18:20] Speaker 03:
you know, it is a narrower quantum of interest and it's also time limited, right?

[01:18:25] Speaker 01:
It's, I mean, yeah, but it's also, I mean, they haven't made the argument in these terms, but just to really push you on this for them, this is a hugely public, hugely public moment, you know, retrospectively becomes known.

[01:18:43] Speaker 01:
All of their subscribers are feeling pretty comfortable that their information is

[01:18:50] Speaker 01:
secure, and that if anybody wants to go behind that curtain and pursue some form of criminal investigation against them, they'll at least know about it.

[01:19:02] Speaker 01:
And for their, I mean, to the extent that speech matters to them as a business matter, it's a big deal.

[01:19:09] Speaker 03:
So I couldn't disagree more with this notion that they will know about, not until it's an empirical matter.

[01:19:15] Speaker 03:
I have no idea what the common Twitter user might think or not.

[01:19:17] Speaker 03:
But as Judge Carney said in the concurring opinion in the Microsoft case, the probable cause analysis is the protection that is there, right?

[01:19:25] Speaker 03:
It's not just like the government can go in and grab this stuff.

[01:19:28] Speaker 03:
It has to go before a neutral court.

[01:19:30] Speaker 03:
It has to go before a judge and prove that there is probable cause to undertake this search in the first place.

[01:19:35] Speaker 03:
And then on top of that, it has to be the additional step of saying not only was there a probable cause to go and get access to this information, there is the additional factors under 2705B that shows why it is that it can't be disclosed so that that user is not alerted to it with the potential consequences of jeopardizing the investigation.

[01:19:57] Speaker 00:
And then by doing so, would you suggest that any of these types of cases are more fact-specific, like we wouldn't be painting

[01:20:04] Speaker 00:
a broad brush in terms of how we would tailor any order.

[01:20:08] Speaker 00:
We would be looking at what has occurred here.

[01:20:11] Speaker 03:
I think that's absolutely right.

[01:20:14] Speaker 03:
I mean, obviously the court has to analyze the relevant kind of set of facts and its application to the laws, you know, to 2705 be here.

[01:20:24] Speaker 03:
But I don't think there's anything here, right?

[01:20:27] Speaker 03:
I mean, if a user, if this is some picking up on Judge Pillard's sort of framing of this, if down the line someone were to find out, well, you know, the government got access to this Twitter account,

[01:20:37] Speaker 03:
You know, it would also be part of the discussion.

[01:20:40] Speaker 03:
It got the warrant.

[01:20:41] Speaker 03:
They went before a judge.

[01:20:43] Speaker 03:
They justified the 2705 be sort of kind of kicking in the Friedman question.

[01:20:47] Speaker 03:
There's been a lot of adversarial, perhaps not fully adversarial, but pretty adversarial process here.

[01:20:53] Speaker 03:
Right.

[01:20:54] Speaker 03:
I mean,

[01:20:54] Speaker 03:
Twitter has filed its motion, we have responded, we've gone back and forth on this, and here we are before this court.

[01:21:01] Speaker 03:
What Twitter v. Garland said, and as I heard I think my friend on the other side quote it, is, you know, long as these process have sort of a robust process, that sort of stands in for the Friedman type concerns.

[01:21:13] Speaker 03:
You know, we obviously argue in our brief that Friedman in the non-criminal context has little if no applicability here, but the point is there is plenty of

[01:21:21] Speaker 03:
process that enables the full airing of Twitter's First Amendment.

[01:21:26] Speaker 02:
So I'd like to go back to your point about this being sort of a sliver of speech.

[01:21:32] Speaker 02:
It's like not the same type of speech that you see in other contexts like a film or somebody who wants to speak in a public square, express their political views.

[01:21:41] Speaker 02:
And it seems that in other cases, the government has taken the position that intermediate scrutiny should apply, such as in the Third Circuit case and also in the Second Circuit case, you said something less than strict scrutiny could apply.

[01:21:55] Speaker 02:
And there is support for that notion in a lot of these cases, which talk about

[01:22:00] Speaker 02:
um the value of speech about for example something you knew before the government process commenced like in the grand jury um versus uh things that you learn only from the government so there seems to be ample support for the notion that strict scrutiny shouldn't apply in this context where the speech right that's being asserted concerns information that twitter has only because the government has

[01:22:25] Speaker 02:
given it to them and they want to disclose this information just about the government investigation, a very small bit of speech that, for example, the Second Circuit says this is different from restraints on things like

[01:22:42] Speaker 02:
those who customarily wish to exercise rights of free expression speakers in public for distributors of literature exhibitors of movies it's it's a different kind of speech yet it appears that you're not asking for a lower standard of scrutiny I'm wondering why that is so I agree that there is.

[01:22:59] Speaker 03:
you know, precisely sort of the line of discussion.

[01:23:02] Speaker 03:
I'm not aware of a court that has held that something other than strict scrutiny, there have been plenty of courts as the district court did below here, the Southern District of New York court in Google that say, look, I'm just going to assume without deciding that strict scrutiny applies.

[01:23:17] Speaker 03:
And I think

[01:23:18] Speaker 03:
we prevail even on that more exacting standard.

[01:23:21] Speaker 03:
But I'm not going to fight the premise we certainly have in our footnote.

[01:23:24] Speaker 03:
I mean, the district court recognized this below.

[01:23:26] Speaker 03:
Dogu, Iwakezi, and the Second Circuit has said that perhaps that was precisely what you're quoting.

[01:23:33] Speaker 03:
Again, similar to the discussion with Friedman, again, we are talking about a qualitatively different type of speech.

[01:23:42] Speaker 03:
And I think that's picked up in the Reinhardt case from the Supreme Court, Butterworth,

[01:23:46] Speaker 03:
Again, those same ideas that, again, we're not here to dispute that Twitter has a First Amendment interest.

[01:23:52] Speaker 03:
It's just not the type of interest that is at play in many of the cases that it cites.

[01:23:57] Speaker 03:
In fact, it's notable that I don't think it cites a single criminal case in terms of the First Amendment, right?

[01:24:03] Speaker 03:
It cites Brown and it cites, you know, Reed and cases that don't

[01:24:08] Speaker 03:
deal with this kind of working out of First Amendment interests where on the other side of this you have, you know, interests in secrecy and criminal investigation.

[01:24:20] Speaker 02:
And so, you know, again, a long way to say- So is it just easier to assume strict scrutiny and apply it than to sort of create this new, I guess, category of speech that gets intermediate scrutiny?

[01:24:31] Speaker 02:
Is that why?

[01:24:32] Speaker 02:
Is it a strategic?

[01:24:34] Speaker 03:
As a short answer, I would say yes.

[01:24:36] Speaker 03:
I think that we believe the district court was fully correct that we prevail even under strict scrutiny.

[01:24:43] Speaker 03:
I'm not aware of, in fact, a single district court or court of appeals that has held otherwise.

[01:24:48] Speaker 03:
I suppose with one exception, I can think of a central district of, or I think it's a central district of California, a district court case where the NDO had no time limitation at all.

[01:24:58] Speaker 03:
So it was indefinite and there, that flunked.

[01:25:01] Speaker 03:
But barring something like that,

[01:25:03] Speaker 03:
I think it's telling that even applying the more exacting standards, you know, again, we are courts as here don't just rubber stamp.

[01:25:11] Speaker 03:
By and large, that's going to satisfy the strict scrutiny.

[01:25:14] Speaker 01:
You, you mentioned mootness.

[01:25:19] Speaker 01:
And I just wonder about.

[01:25:21] Speaker 01:
capable repetition, innovating review, it seems like this is the kind of issue that's gonna be on a pretty short timeline, but I assume that the United States will continue to seek disclosure orders and that increasingly they're gonna involve electronic service providers.

[01:25:39] Speaker 01:
So given that this is a legal wrong that's likely to recur, why isn't that a reason that we could reach

[01:25:48] Speaker 03:
the issue, it's not moot.

[01:25:49] Speaker 03:
So one answer is the case specific, that it's unlikely to arise again here.

[01:25:53] Speaker 03:
I understand that this, as a doctrinal matter, applies in a framework more broadly.

[01:25:58] Speaker 03:
I will say, however, in this court decision in Washington Metro, the court recognized that the capable of a repetition yet evading review is not necessarily a reason to just get to the issue.

[01:26:11] Speaker 03:
More directly speaking,

[01:26:13] Speaker 03:
If and when this arises again, and I don't disagree that there is a high likelihood that the government will seek a warrant from a service provider and seek an attendant non-disclosure order, it can be, it's not evading review, right?

[01:26:26] Speaker 03:
I mean, a service provider there can challenge it.

[01:26:31] Speaker 03:
We think the district court was absolutely right in rejecting what we call the fellow travelers argument, but we also point out in a footnote that

[01:26:40] Speaker 03:
Twitter could, in theory, this is not a result we would have liked, but could, in theory, have said, we're not going to comply at all.

[01:26:46] Speaker 03:
We're willing to take on all of the sanctions, maybe gone back and asked for a difference in the sanctions, either staying the accrual of the sanctions or for some sort of diminishment, and could review it and have it reviewed in that case.

[01:26:59] Speaker 03:
But in terms of mootness here, Twitter applied, obviously belatedly, by whatever it was, February 9, and at that point,

[01:27:08] Speaker 03:
there is nothing that can be done to undo its production to the extent its production was important to informing the former president about an executive privilege issue.

[01:27:20] Speaker 03:
Now, I feel like I didn't actually answer your question fully about the alternative measures because that gets back to, I think I understood Twitter to say today, it would have still been satisfactory to alert

[01:27:33] Speaker 03:
the representatives, even if they were under some sort of disclosure, non-disclosure obligation themselves, it seems wildly sort of different than how they began litigating this case, which is this is about trying to protect the potential executive privilege.

[01:27:50] Speaker 03:
And now today I hear this argument

[01:27:53] Speaker 03:
Well, even if they don't, even if the former president never hears about it, and there's never the possibility for any executive privilege claim, that would somehow still have us vindicate our First Amendment right.

[01:28:05] Speaker 03:
And that just really makes me wonder what we're doing, quite frankly.

[01:28:13] Speaker 03:
I'm happy to turn to sanctions or address any other questions.

[01:28:16] Speaker 01:
Yeah, on the sanctions amount,

[01:28:22] Speaker 01:
This is it.

[01:28:22] Speaker 01:
I mean, one wonders whether this was even what the district court intended to have it double every day to the point where we're talking about, I think, hundreds of billions within three weeks.

[01:28:39] Speaker 01:
What's your position on whether that's reasonable or whether we don't have to so hold?

[01:28:47] Speaker 01:
I mean, maybe reasonable, whether that's an abuse of discretion.

[01:28:50] Speaker 03:
So it is.

[01:28:53] Speaker 03:
The question, as I understand it, before the court is, was the sanction imposed reasonable?

[01:28:59] Speaker 03:
And a $350,000 sanction for a company of Twitter's valuation was reasonable?

[01:29:08] Speaker 03:
I mean, the point, obviously, of a sanction is to induce compliance, and that worked, right?

[01:29:16] Speaker 01:
I don't- But clearly, if the district judge had said, all right, you've told me you're gonna comply by today,

[01:29:22] Speaker 01:
And if you haven't comply by tomorrow, it'll be $350,000.

[01:29:28] Speaker 01:
And the next day, it'll be $100 billion.

[01:29:35] Speaker 01:
And they do comply by the next day.

[01:29:37] Speaker 01:
And so all they have to pay is $350,000.

[01:29:44] Speaker 01:
Is it really the case that we don't have to consider?

[01:29:47] Speaker 01:
that threat that they were facing that the very next day they would face a $100 billion sanction?

[01:29:53] Speaker 03:
I mean, there's some hard high points here, right?

[01:29:55] Speaker 03:
And at some point, I mean, you could say, and I'm going to imprison you and toss you in a dungeon or something like this.

[01:30:02] Speaker 03:
And I do think at some of these far extremes, yes, I suppose it could get troubling fairly quickly.

[01:30:09] Speaker 03:
But I think there are a couple of points in response here.

[01:30:12] Speaker 03:
The point I think I heard you articulate, which is, I think it would be one thing if the contender was making noises to say.

[01:30:21] Speaker 03:
slap whatever you want on me.

[01:30:23] Speaker 03:
I'm not planning to comply.

[01:30:25] Speaker 03:
And nonetheless, you get one of these kind of exponential things that's clearly going to blow through.

[01:30:30] Speaker 01:
I think it's not exponential.

[01:30:31] Speaker 01:
I think it's geometric.

[01:30:32] Speaker 01:
But it's nonetheless steep.

[01:30:34] Speaker 03:
There's a reason I'm a lawyer and not a mathematician.

[01:30:36] Speaker 03:
But the point just being, under the circumstance where it's clear someone, to avoid mootness, to go back to the colloquy we had a moment ago, and a court was going to say,

[01:30:47] Speaker 03:
Doesn't matter.

[01:30:48] Speaker 03:
I'm going to hit you with something that's going to bankrupt you in three weeks, right?

[01:30:52] Speaker 03:
So that's kind of point one.

[01:30:54] Speaker 03:
I think the context here is quite relevant.

[01:30:56] Speaker 03:
Point two, in addition to Pickford, where you had the kind of going up $1,000 each month, you also have the case that my friends on the other side cited in their brief city of Yonkers that involved, I think it started at $100 and went up by day

[01:31:11] Speaker 03:
That ultimately, what the Second Circuit did there, it modified it and it basically said, it's fine doubling like that.

[01:31:18] Speaker 03:
That's an acceptable way to structure a fine.

[01:31:21] Speaker 03:
When it hits a million dollars though, I mean, technically, day 14, it hit $800,000.

[01:31:25] Speaker 03:
The next day, it would have gone over a million.

[01:31:28] Speaker 03:
The Court of Appeals said, I'm sending it back.

[01:31:31] Speaker 03:
It's got to be a million dollars a day thereafter because otherwise we get into some pretty dicey territory.

[01:31:35] Speaker 02:
Is there harmless error analysis that applies to this?

[01:31:39] Speaker 02:
Because what we have here is maybe the formula was erroneous, but since it didn't get that far, we're only at 350.

[01:31:48] Speaker 02:
Does harmless error apply here?

[01:31:50] Speaker 02:
And can you also apply the wave the waiver argument?

[01:31:52] Speaker 02:
Because they didn't challenge this formula.

[01:31:54] Speaker 03:
I'll take one at a time.

[01:31:57] Speaker 03:
The point I was trying to make the city of Yonkers is I don't think there is in fact error with that kind of a structuring.

[01:32:04] Speaker 03:
At a certain point, I think it could get problematic.

[01:32:07] Speaker 03:
Our bottom line here is $350,000 is well short at that point.

[01:32:11] Speaker 03:
If the court were to disagree and say, in fact, this kind of geometric structuring of fines was erroneous, it was nonetheless harmless for the same reason that $350,000 is reasonable for all the reasons.

[01:32:27] Speaker 03:
I won't go through the reasons again.

[01:32:29] Speaker 00:
What about Twitter's substantial compliance argument?

[01:32:33] Speaker 03:
If I can just finish answering Judge Pan's question and then turn to that in terms of waiving the waiver.

[01:32:40] Speaker 03:
So, uh, I, I actually tend to agree that by with my friend on the other side here, which is at least by saying that they did not, uh, you know, they oppose any fine that they, uh, at least preserve their argument that they were challenging it.

[01:32:56] Speaker 03:
I agree that they could have done more to say, well, even if there is going to be a fine, you know, it shouldn't look like, like the one that was ultimately imposed.

[01:33:06] Speaker 03:
Um, but.

[01:33:07] Speaker 03:
You know, again, as I think I heard my friend on the other side, I think that sort of failure and clarity was similar to their failure and clarity when at J.A.

[01:33:15] Speaker 03:
210, when asked, can you comply?

[01:33:17] Speaker 03:
Judge Childs, I think this starts to address your question.

[01:33:20] Speaker 03:
They don't say, for example,

[01:33:22] Speaker 03:
you know what we can give you everything that's in our standard tool or standard tooling but there's still an area over which there's some disagreement and we haven't been able to work that out yet with the government so we can commit right now to be able to give you whatever we've already pulled but we're going to need some additional time and we'd ask the court to set you know one deadline or into the five o'clock deadline on February 7th or what we've got readily available and maybe give us

[01:33:51] Speaker 03:
you know, they know better than I would, you know, two days, 24 hours to be able to figure out precisely what needs to happen next.

[01:33:57] Speaker 03:
I think that would have been certainly the kind of factual background that would have made a potential substantial, a good face substantial compliance argument, one that would have some teeth, but that's not what they did, right?

[01:34:12] Speaker 03:
I mean, what they did was say, certainly give every indication to the district court that it was, that Twitter was prepared to comply.

[01:34:20] Speaker 03:
And I would add to that, I think it's a bit of a mischaracterization of the record to suggest that Twitter was coming forth and ready to negotiate.

[01:34:30] Speaker 03:
It made one comment, I believe on February 1st, saying we might have some technical things that we need to work out.

[01:34:38] Speaker 03:
But if that's true, then continue to work them out.

[01:34:42] Speaker 03:
And by the way, to the extent

[01:34:46] Speaker 03:
The core concern here was some potential violation of executive privilege.

[01:34:51] Speaker 03:
That would have covered a minuscule amount of what was the production.

[01:34:55] Speaker 03:
That would have referred only to the direct messages from the former president's account.

[01:35:01] Speaker 03:
That would have had nothing to do with anything else in the entire production.

[01:35:04] Speaker 03:
And so easily Twitter could have been working towards, you know,

[01:35:09] Speaker 03:
Having any negotiations about something that was, in their view, unclear about the warrant, resolving any technical issues that were required in making that production ready, but none of that apparently happened.

[01:35:21] Speaker 01:
Mr. Pierce, your brief doesn't specify the precise basis of our jurisdiction.

[01:35:26] Speaker 01:
Is it 1291?

[01:35:27] Speaker 01:
Is it collateral order?

[01:35:29] Speaker 03:
So other than the piece that's moot, we agree that it's a collateral order, right?

[01:35:36] Speaker 03:
It's something that doesn't go to the merits here.

[01:35:41] Speaker 03:
It's of substantial importance, and it isn't going to get resolved any other way.

[01:35:45] Speaker 03:
So on that point, we agree with issues one and three that collateral order.

[01:35:52] Speaker 01:
And then in terms of timing, I think the nondisclosure order is set to expire

[01:35:59] Speaker 01:
July 16th, is that correct?

[01:36:01] Speaker 03:
Yeah, it's either the 16th or 17th, 16th is a Sunday, but yes, mid-July.

[01:36:05] Speaker 01:
Okay, and so you're looking for an opinion, both parties are looking for an opinion before then.

[01:36:11] Speaker 01:
And do you have a view, I mean, we could talk about this ex-party, but do you have a view on whether we could issue a published opinion with redactions in this case, or would you assume the opinion should be under seal?

[01:36:25] Speaker 01:
I just have to be candid, this is my first sealed case.

[01:36:28] Speaker 03:
So I think that it would probably be appropriate to issue it under seal and not publicly available, at least while an investigation is continuing.

[01:36:40] Speaker 03:
And I think it would be fair to revisit the question of its wider publicization, wider publishing whenever the investigation ends in whatever way it does.

[01:36:54] Speaker 02:
If the NDO

[01:36:56] Speaker 02:
expires on July 16th, why would the opinion need to remain under seal after that point?

[01:37:02] Speaker 03:
That's a good point.

[01:37:03] Speaker 03:
I suppose I had in mind it would depend to some extent on what the opinion consisted of and whether there was information that would still need to be redacted.

[01:37:13] Speaker 03:
But yes, if the NDO expires and if the government doesn't move to renew it, I would think that any of the kind of discussion that doesn't implicate anything that's covered by Rule 60 probably could.

[01:37:24] Speaker 02:
So a redacted version perhaps could issue.

[01:37:26] Speaker 03:
Yeah, that's right.

[01:37:27] Speaker 03:
If it were renewed, I think I would stand by the answer I gave a moment ago.

[01:37:31] Speaker 03:
But certainly, if it expired with no renewal, then I think that would be appropriate.

[01:37:39] Speaker 03:
If there are no further questions, I'd ask the court to respond.

[01:37:51] Speaker 04:
Thank you, Your Honors.

[01:37:52] Speaker 04:
I have just a few brief points to make.

[01:37:54] Speaker 04:
The first is I want to address the significance of the speech.

[01:37:57] Speaker 04:
It is the core of the First Amendment.

[01:38:00] Speaker 04:
It's something to be able to speak about what the government is up to by their interactions with the government that is especially true and what the government is up to may intrude upon the privilege or interests of individuals.

[01:38:09] Speaker 04:
One can imagine circumstances.

[01:38:11] Speaker 02:
What about the precedents that say this is different?

[01:38:14] Speaker 02:
What's your response to them?

[01:38:15] Speaker 02:
Butterworth and Reinhardt.

[01:38:19] Speaker 02:
and the statement in Dover.

[01:38:21] Speaker 04:
What Butterworth says is the First Amendment isn't suspended with respect to a grand jury proceeding, which itself is a unique context.

[01:38:28] Speaker 02:
Correct, because if it's information that you had before you went into the grand jury, it would be strange that once you go into the grand jury, now you can't talk about it.

[01:38:36] Speaker 02:
So there was a difference.

[01:38:37] Speaker 02:
That's correct.

[01:38:38] Speaker 02:
It depends on what you had before the government process began.

[01:38:41] Speaker 02:
But with respect to what Twitter has here, you had nothing until the government actually served you with a warrant.

[01:38:48] Speaker 02:
That's what you want to talk about.

[01:38:50] Speaker 04:
Your Honor, that's true of every circumstance where when people learn about what the government is up to, it comes from interacting with the government.

[01:38:56] Speaker 02:
But then what about Reinhart?

[01:38:57] Speaker 02:
Reinhart says if you got this information just through discovery, it's not subject to the same protection because it's through the court process.

[01:39:04] Speaker 02:
How do you deal with these precedents?

[01:39:05] Speaker 04:
So let me address the Alzheimer's versus Reinhart.

[01:39:07] Speaker 04:
The Alzheimer's versus Reinhart dealt with an extremely different situation.

[01:39:11] Speaker 04:
In that case, the party, the reporter, had used the coercive powers of the court system to obtain private information.

[01:39:20] Speaker 04:
That is a very different situation where a party has not actually used coercive powers of the state in order to obtain information from another party.

[01:39:29] Speaker 04:
When you have used the tools of civil discovery to obtain information

[01:39:36] Speaker 04:
that it may come with a deal.

[01:39:38] Speaker 01:
But isn't there kind of a loose analogy?

[01:39:40] Speaker 01:
You have the misfortune of being the target of the government's use of its powers because a subscriber, there's probable cause to believe there's subscriber has engaged in unlawful conduct.

[01:39:55] Speaker 01:
And so it's coming to you only because of the exigencies of some court process.

[01:40:02] Speaker 01:
And I know you challenge the exigencies, but for these purposes, assuming that there is a basis.

[01:40:10] Speaker 04:
Well, I think I'm trying to make it what is, I think, a very small point, Your Honor, which is that much of what we learn about what the government is up to comes because the government has interacted with us.

[01:40:21] Speaker 04:
and has chosen to, it would be an extraordinary restriction of the first amendment to say that when one learns about the possibility that the government's conduct is intruding on someone's rights, whether that's intruding on the relationship between a doctor and their patient or a journalist and their source.

[01:40:35] Speaker 02:
I'm sorry.

[01:40:35] Speaker 02:
Why is it extraordinary when I think there, there is ample precedent for saying that secrecy in criminal investigations is a well-established interest that the government has.

[01:40:47] Speaker 02:
Why is that extraordinary?

[01:40:48] Speaker 04:
I don't believe there's any support for any of that secrecy alone is an interest the government has.

[01:40:52] Speaker 02:
There is an interest in avoiding... All right, we see secrecy to the extent that it prevents jeopardizing the investigation, which is what is asserted here.

[01:41:00] Speaker 02:
I just think that that's not extraordinary at all.

[01:41:01] Speaker 02:
I think that that's a long-standing interest, which is, I guess, demonstrated by Rule 6E.

[01:41:08] Speaker 04:
We are not disputing that the government has certain compelling interests.

[01:41:13] Speaker 04:
What we are disputing is the suggestion that Twitter does not itself have

[01:41:16] Speaker 04:
an extraordinary interest here.

[01:41:17] Speaker 04:
We are not talking about a narrow slice of speech.

[01:41:20] Speaker 04:
We are talking about Twitter's ability to speak about something of extraordinary significance, which is what it has learned about the government's possible intrusion on important rights and privileges of its users because of its interaction with the government.

[01:41:33] Speaker 04:
Just as, yes, a doctor received legal process that was seeking information about its relationship with a patient, or a journalist receiving legal process about its information, or Twitter received legal process that was seeking information about a journalist

[01:41:46] Speaker 04:
interaction with the sources, the ability to speak about what the government is up to is of the utmost significance.

[01:41:53] Speaker 04:
I see I've gone over my time.

[01:41:55] Speaker 04:
There was only one other point I was hoping to make, Your Honors, which is that we have, from the very beginning, could have argued, my friend on the other side suggested there's been some kind of moving target.

[01:42:05] Speaker 04:
From the very beginning, could have argued that it should be permitted to disclose just to, as an alternative, just to representatives of the former president.

[01:42:15] Speaker 04:
That would not be an alternative if it didn't come with it.

[01:42:18] Speaker 04:
Some necessary restrictions so that representative would not be able to turn around and then communicate that to the foreign president.

[01:42:24] Speaker 04:
We believe that at a bare minimum, the availability of that less restrictive alternative means that this NDO is not satisfying the first amendment.

[01:42:31] Speaker 02:
Thank you.

[01:42:32] Speaker 02:
I have just one question for you Mr. Holtzblatt.

[01:42:34] Speaker 02:
Given that there will be at some point an opinion redacted or not after the investigation is over, that will show that Twitter opposed this.

[01:42:45] Speaker 02:
Doesn't that, in some sense, assuage your concern about customer relations and Twitter standing up for its customers, et cetera?

[01:42:55] Speaker 04:
No, Your Honor.

[01:42:56] Speaker 04:
Well, to know your honor, because speech is not just about being able to speak.

[01:43:02] Speaker 04:
It's about being able to speak when it matters most.

[01:43:04] Speaker 04:
That is the through line throughout the Supreme Court's First Amendment precedent that the timing of speech matters.

[01:43:10] Speaker 04:
And even to this day, it still matters.

[01:43:12] Speaker 04:
We don't know the process.

[01:43:14] Speaker 04:
One of the concerns that we raise with respect to executive privilege that the user may want to assert is that the information

[01:43:21] Speaker 04:
that is covered by sector privilege may then be used in a grand jury proceeding, may be used with other witnesses which come outside.

[01:43:26] Speaker 02:
No, I understand the merits.

[01:43:27] Speaker 02:
You think you'd like to speak sooner rather than later to the extent that the interest that you're asserting as to why this is so important to Twitter is that you want to communicate with your customers and you want your customers to know that Twitter stands up for them.

[01:43:40] Speaker 02:
It just seems that an opinion that describes these proceedings at some point would address that concern.

[01:43:49] Speaker 04:
Your honor, we don't want to just

[01:43:50] Speaker 04:
We don't want our customers to know we stand up for them.

[01:43:52] Speaker 04:
We want to stand up for them.

[01:43:55] Speaker 04:
And so our ability to speak now is what is the content of standing up for them.

[01:44:00] Speaker 04:
So it is important to be able to speak when that speech is most effective.

[01:44:07] Speaker 01:
I do have just one more question, which is about the sanction.

[01:44:10] Speaker 01:
And I know this is not consistent with your position and we have not conference and we have not decided the case, but if we were to decide that the sanction actually imposed is reasonable, but that the schedule is not what relief.

[01:44:32] Speaker 04:
Well, I don't think that those two can be fully separated.

[01:44:34] Speaker 04:
And I think, so I think that the fact schedule

[01:44:37] Speaker 04:
is not reasonable would bear on the sanction act imposed not being reasonable.

[01:44:43] Speaker 04:
I do also think that given the very specific facts of what it was doing over the course of the 51 hours for which it was sanctioned, if the court, as we believe it should, focuses just on the relevant period between 5 PM on February 7,

[01:45:01] Speaker 04:
and 51 hours later, there is no dispute that Twitter was acting in good faith and working as hard as it could throughout that period to comply.

[01:45:10] Speaker 04:
Thank you.

[01:45:10] Speaker 04:
Thank you, Your Honors.

[01:45:11] Speaker 04:
The Court has no further questions.

[01:45:12] Speaker 04:
I believe my time has expired a long time ago.

[01:45:15] Speaker 01:
I just wanted to say that as we ask

[01:45:19] Speaker 01:
Council for Twitter to exit the quorum and allow us to hear from the government.

[01:45:23] Speaker 01:
This is, you know, ex parte proceedings is not something that we do lightly.

[01:45:27] Speaker 01:
And yet it, I think, helps us honor the First Amendment interest that you assert to have an opportunity without having decided the legitimacy or not of their non-disclosure request to be able to probe that in more detail without others present.

[01:45:48] Speaker 01:
So I'm just explaining that.

[01:45:51] Speaker 04:
And Your Honor, I agree and believe that our First Amendment interest is best served by the kind of searching probing that Your Honor has described.

[01:45:59] Speaker 04:
So thank you.

[01:46:01] Speaker 01:
Thank you.

[01:46:01] Speaker 01:
We'll take a pause to allow the courtroom to be cleared.